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8637cc97-865a-4bd5-bb40-93eb099706dc | Ex parte Don Davis | alabama | Alabama Supreme Court | STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2014-2015
1140456
Ex parte Don Davis,
Judge of Mobile County Probate Court
oRDER
The petition filed in this Court by the Mobile County
Probate Judge on February 9, 2015, in substance is a request
for an advisory opinion. Section 12-2-10, Ala. Code 1975,
authorizes this Court to address requests for advisory
opinions fron only the Governor or the Legislature. See
opinion of the Justices No, 199, 286 Ala. 156, 158, 238 So. 2d
326, 327 (1970). Because this Court is not authorized to
address this petition, the petition is dismissed,
PETITION DISMISSED
stuart, Main, Wise, and Bryan, JJ., concur.
Bolin, Murdock, and Shaw, JJ., concur specially.
Parker, J., concurs in the result
Moore, C.d., recuses himself.
hherowith set out as same appear(s) of recordin aid
Wiese my hae this Ly op orcs 1
conccloerlonn asta
1140456
BOLIN, Justice (concurring specially).
“What has been an orderly process, I suspect, will soon
resemble a three-ring circus." Tyson v. Macon Cnty, Greyhound
Kk, Inc., 43 So, 3d 587, 595 (Ala, 2010) (Woodall,
dissenting). Admittedly this quotation is taken out of
context. From the perspective of a probate judge in Alabama,
however, the events that have unfolded subsequent to the
issuance of the memorandum opinion and order by United States
District Judge Callie S$. Granade, in the United states
District Court for the Southern District of Alabama, Southern
Division, in Civil Action No. 14-0208-cG-N surely brings to
mind this quotation. I do not intend to trivialize the
important constitutional questions presented by this
controversy, but the unfortunate path this litigation has
taken so far has resulted in mass confusion that I suspect has
led the public to wonder what has happened to the orderly rule
of law.
As a former probate judge, I am aware of the many duties
imposed by law upon the office of probate judge, only one of
waich is judicial. Some of the other "hats" worn by some or
all probate judges include being the keeper of records and
1140456
documents that must be maintained for posterity, serving as
the chief election official of the county in all elections,
and, although this particularly may vary from county to
county, issuing a variety of licenses, e.g., hunting licenses,
fishing licenses, driver's license renewals, automobile-tag
renewals, and marriage licenses.
Although I concur fully with the dismissal of the action
herein, as will be addressed further below I am disappointed
and concerned that, amongst everyone heretofore connected with
the constitutional issues and the litigation, nowhere has
there been a probate judge with a seat as a party at any of
these proceedings, except for Mobile County Probate Judge Don
Davis, who was diemissed from the proceedings on duly 25,
2014, and added again as a party on February 10, 2015. The
only two judicial participants who exercised wisdom,
restraint, and discretion on the record were United states
Supreme Court Justices Thomas and Scalia. I specifically refer
to Justice Thomas's dissent to the United states Supreme
Court's denial of a stay in the federal court matter, which
Justice Scalia joined and which states as follows:
wThe Attomey General of Alabama asked us to
stay a federal injunction preventing him from
1140456 '
enforcing several provisions of Alabama law defining
marriage as a legal union of one man and one woman
pending our consideration of Obergefell v. Hodses,
No. 14-556; Tanco v. Haslam, No. 14-562; DeBoer v.
Snyder, No. 14-571; and Bourke v. Beshear, No.
14-574, Those cases are scheduled to be argued this
‘Term and present the same constitutional question at
issue here: Whether the Fourteenth Amendment
requires States to recognize unions between two
people of the same sex as a marriage under state
law.
en courts declare state laws unconstitutional \
and enjoin state officials from enforcing then, our
ordinary practice is to suspend those injunctions
from taking effect pending appellate review. see,
e.g., Herbert v. Kitchen, (Ms. 13A687, January 6,
2014] 571 U.S. (2014); see also san Diegans for
Mt, Soledad Nat War Menoxial v. Paulson, 548 9.8.
1301 (2006) (Kennedy, J., in chambers) (staying an i
injunction requiring a city to renove its religious |
memorial). Although a stay is not a matter of right,
this practice reflects the particularly strong
showing that States are often able to make in favor
of such a stay. Because States are required to i
comply with the Constitution, and indeed take care
to do so when they enact their laws, it is a rare
case in which a State will be unable to make at
least some showing of a likelihood of success on the
merits. States also easily meet the requirement of
irreparable injury, for '"{alny time a state is
enjoined by a court from effectuating statutes
enacted by representatives of its people, it suffers
a form of irreparable injury."' Maryland v, King,
(Ms. 12948, July 30, 2012] 567 U.S. (2012)
(quoting New Motor Vehicle Bd. of Cal. v. Orrin W,
Fox Co,, 434 U.S. 1345, 1351 (1977) (Rehnquist, J.,
in chambers)). The equities and public interest
likewise generally weigh in favor of enforcing duly
enacted state laws
(slip op., at 2-3) (Roberts, C.J., in chambers) |
1140456
"It was thus no surprise when we granted a stay
in eimilar circumstances a little over a year ago.
See Herbert v. Kitchen, gupra. Nor was it a surprise
when we granted a stay in similar circumstances less
than six months ago. McQuigg v, Bostic, [Ms. 140196,
Aug. 20, 2014] 573 U.S. _ (2024). Those decisions
reflected the appropriaté respect we owe to States
as sovereigns and to the people of those States who
approved those laws.
"This application should have been treated no
differently. That the Court more recently denied
several stay applications in this context is of no
moment. Those denials followed this Court's decision
in October not to review seven petitions seeking
further review of lower court judgments invalidating
state marriage laws. Although I disagreed with the
decisions to deny those applications, Armstrong v.
Brenner, ante, p. __; Hilson v. Condon, ante, D. _i
Moser v. Marie, ake, p. __, 1 acknowledge that
there was at least an argument that the October
decision justified an inference that the Court would
be less likely to grant a writ of certiorari to
consider subsequent petitions. That argument is no
longer credible. The Court has now granted a writ of
certiorari to review these important issues and will
do so by the end of the Term. The Attorney General
of Alabama is thus in an even better position than
the applicant to whom we granted a stay in Herbert
yet rather than treat like applicants alike,
the Court looks the other way as yet another Federal
District Judge caste aside state laws without making
any effort to preserve the status quo pending the
Court's resolution of a constitutional question it
left open in United States v. Windsor, [Ms. 12-307,
June 26, 2013] 570 U.S (2013) (slip op., at
25-26). This acquiescence may well be seen as a
signal of the Court's intended resolution of that
question. This is not the proper way to discharge
our Article III responsibilities. And, it is
1140456
indecorous for this Court to pretend that it is.
Today's decision represents yet another example
this rt's increasingly cavi
toward the States. Over the past few montns, the
Court has repeatedly denied stays of lower court
judgments enjoining the enforcement of state laws on
questionable constitutional grounds. See, e.g.,
Mari ey v z-Valenzuela, (Ms. 140493,
Nov. 13, 2014) 574 U.S. __, (2014) (slip op.,
at 2) (Thomas, J., joined by Scalia, J., respecting
denial of application for stay) (collecting cases)
It has similarly declined to grant certiorari to
review such judgments without any regard for the
people who approved those laws in popular
referendums or the elected representatives who voted
for them. In this case, the Court refuses even to
grant a temporary stay when it will resolve the
issue at hand in several months.
"I respectfully dissent from the denial of this
application. I_would have shown the people of
Alabama the x: they deserve and preserved the
1 Et resol: his important
constitutional question."
Strange v. Searcy, [Ms. 140840, February 9, 2015] 574 U.S
, —— (2015) (emphasis addeq) .
The highly emotional issue involved in the federal
proceeding, on both sides of the argument, it appears will be
decided only by the United states supreme Court. The
plaintiffs in the two cases decided by the federal district
court could have joined the various probate judges in the
State as parties, if nothing else, as relief parties. For
1404s
chat matter, the federal district court could have provided
chat the probate judges were made defendants. see Rules 19
and 20, Fed. 8. Civ. P, (allowing for joinder and permissive
joinder, respectively). This would have allowed the probate
judges notice and an opportunity to be heard. Rather, the
only probate judge made an original party to the federal court
action was Judge Davis, the petitioner in the instant
proceeding, who was later dismissed from that action with
prejudice and who has now been added as a party again, The
federal district judge in her order acknowledged both that the
united states Supreme Court has granted certiorari in a case
to be decided in this Term of Court and that that case will
"definitively" decide the important constitutional issues
involved, However, the same federal district court denied a
stay past February 9, 2015, although the definitive decision
lies just four months ahead. rt is my judgment that the
united states Court of Appeals for the Eleventh Circuit, with
due respect, also contributed to the resulting confusion by
refusing to take further action in this and similar same-sex-
marriage cases in that circuit until the United States Supreme
Court issues a decision and by denying a stay of the federal
1140456
court matter before Judge Granade. While all of the above was
occurring, the Chief Justice of the Alabama Supreme Court sent
a letter to the probate judges giving them advice on how to
address this issue, together with a memorandum of law, and
finally issued an order to the probate judges on the eve of
yn of the federal court's temporary stay that
the expiral
reflected a view of the law that directly conflicted with the
federal judge's view of the law as espoused in her order.
The ensuing legal "circus" has left the probate judges,
who had no voice or opportunity to be heard in this matter,
an untenable position -- caught between a federal district
judge's order, the statewide precedential value of which is
uncertain, and an order from the Chief Justice of the Alabama
Supreme Court. If the term "circus" is hyperbole, the current
predicament at least qualifies as a "darned if I do, darned if
1 don't" dilemma for the probate judges, and this is no way to
wisely, fairly, and deliberately administer justice.
‘The Chief Justice has wide powers pursuant to § 12-2-
30(b) (7) and (8), Ala, Code 1975, but the question arises as
to whether those powers apply to probate judges’
administrative, as opposed to judicial, actions. should a
1140456
probate judge follow the order of the chief judicial officer
in the State of Alabama? Or should the probate judge follow
an order of a federal district judge, of which he or she has
possibly been made aware by media or by word of mouth through
his or her professional association, not by having had a seat
at the table in the courtroom as a party? There are many
federal district judges in the three federal districts in
Alabama, From a precedential standpoint, what happens if the
which
opinions of two federal district judges conflict:
opinion, if either, would be the binding precedent on a
federal question? who wins if there is a conflict between a
federal court order and a state-court opinion on a federal
question? Although I do not agree with the entirety of the
article, these questions were recently examined in the
introduction to that article in the Vanderbilt Law Review,
which does state correctly the following pivotal questions:
"Lower federal court precedent cannot bind state
courts, or so we are told, Most state courts assert
that they are free to reach their own conclusions
about the meaning of federal law, even when doing so
creates a conflict with the federal court of appeals
presiding over the geographic region in which they
sit. Several federal circuits have conceded that
their decisions are not binding on state courts,
and, in concurring opinions, two justices have
emphatically agreed. A number of federal courts
1140456
scholars have declared that state courts need not
follow lower federal court precedent because state
courts are ‘coordinate’ with lower federal courts
and not ‘subordinate! to them.
‘and yet, upon closer inspection, the role of
lower federal court precedent in state court
decisionmaking remains unclear. A few state courts
appear to believe that they are bound to follow the
decisions of the federal courts of appeals on
questions of federal law, and many others have
issued inconsistent opinions on that question. The
U.S. Courts of Appeals for the Bighth and Ninth
Circuits claim that state courts must follow their
lead on federal questions, creating a circuit split
that has never been resolved by the Supreme Court.
only a handful of legal scholars have opined on the
matter, and most have done so in passing in articles
devoted to other subjects. Remarkably, then, this
significant question about the interplay between the
state and federal judicial systems lingers
anresolved more than two-hundred years after the
Constitution's ratification. t
"the xelationship between the lower federal
courts and the state courts raises foundational
questions about the place of those federal courts in
Gur constitutional structure, Are the lower federal
rts’ interpretatis f_federal lay
i the
Supreme Col
Alternatively, are state _and lower federal courts |
soequals under the Constitution such that neithe:
1_the other's ruling:
‘the Supreme Court have the constitutional authority
fo Tequire that stare courte follow lower federal
Z
oR
‘sourt_pr 2 i inci ft
federalien forbid ouch intexference with state
institutions, or bec: ni
Judicial independence, or both?
"similar foundational questions were
10
1140456
seventy-five years ago in Erie Railroad v, Tompkins,
[304 U.S. 64, 71 (1938),] when the Supreme Court
overruled swift v, Tyson, [41 U.S. (16 Pet.) 1, 18
(1842),] and held that federal courts must follow
state law as articulated by a state's highest court.
The Court explained that federal courts undermined
state sovereignty by failing to treat state courts’
views on state law as controlling. Although Exie
focused on the federal courts’ obligation to adopt
state common law, the decision confirmed that
federal courts ‘must follow state courts’
interpretations of state positive law as well. The
bottom line after Erie is that state courts have the
final word on the meaning of state law.
“Exie is one of a handful of iconic cases that
has shaped our understanding of not only the
relationship between state and federal courts but
s0 our entire federal system, According to John
Hart Ely, Brie ‘implicates, indeed perhaps it is,
the very essence of our federalism.’ And yet Brie
left the job half done. The case tells us how
federal courts should treat state courts’ precedent
on state law, but it does not address how state
courts should respond to federal courts’
interpretation of federal law. Of course, some might
argue that Exie supports the conclusion that state
courts are bound only by the Supreme Court on
questions of federal law, just as federal courts are
required to follow only the precedent of the highest
court of the state on questions of state law. And
yet the unique and limited role of the Supreme Court
creates a significant disjunction: the Court cannot
quickly resolve disputes between state and federal
courts on the meaning of federal law, leaving
intrastate splits to linger between these court
systems for decades.”
Amanda Frost, Inferiority Complex: Should State Courts Follow
Lower Federal Court Precedent on the Meaning of Federal Law?,
a
3404s
68 Vand. L. Rev. 53, 55-59 (2015) (footnotes omitted; emphasis
added) .
The purpose of this writing is not to try today to answer
the questions posed by the article quoted above. It is
offered solely to illustrate the probable angst and
consternation that each of the 68 probate judges of this state
has undergone since the federal court's order and Chief
Sustice Moore's order were issued, and it did not have to be
this way.
Ae stated above, I place the blame for the confusion that
now exists in the various probate courts of this State since
the two-week stay expired at the feet of everyone involved,
save the Attorney General, who has properly requested a stay
at all levels, and gustices Thonas and Scalia, who offered a
solution that would have delayed this matter for only four
months or less -- after which we would have had the final
answer, no confusion, and, most importantly, an orderly
administration of justice
In conclusion, I feel compelled to comment on a portion
of the amended pleading in the “In Rem Action" that is
actually before thie Court and that the Court properly
12
1140456
dismisses. There is 2 portion contained in the "action" with
which T sharply disagree. 1 quote from paragraph 7 of the
"action":
"7, If this Court either fails to docket this
amended in rem action regarding the Administrative
Order or fails to address this amended in rem action
filed within this Court before the federal court in
the Southern District of Alabama enters an Order
requiring Judge Davis to abide by the above federal
court orders, then Judge Davis will accept this
Honorable Court's failure to act on this amended in
xem _matter ae an implicit directive to Judge Davis
to abide by the Orders of the Southern District of
Alabama on January 23rd and also January 28th, 2015
Judge Davis anticipates that Judge Granade could
enter this Order as quickly as tomorrow based on the
Order the judge has entered today."
(Bmphasis added.)
With due regard for the fact that the above document was
submitted to this Court by a probate judge who is suffering
the uncertainties set forth in this writing, I would caution
any litigant coming before this court that, although,
proverbially, silence may be golden, the silence of this
court, as an institution, should never be treated as an
“implicit directive" to take any particular course of action.
13
1140456
MURDOCK, Justice (concurring specially).
‘The amended petition before us quotes from the February
2015, order of Judge Granade in the case of Searcy v.
Strange (Ms, 14-0208, S.D, Ala., gan, 23, 2015), stating that
her injunction in that case “enjoined ... [the] Attorney
General for the state of Alabama" and those under his
supervision and that, because the petitioner was not a party
to that case, his actions or inactions did not constitute a
“fail[ure] to comply with th[at] order." ‘The petitioner asks
this Court for guidance with respect to the issue of the
constitutionalicy of the various statutes enacted by the
Alabama Legislature providing for the governmental licensing
and recognition of what are referred to in those statutes as
vmarriages," see Ala. Code 1975, §§ 30-1-3 through -19.
Inherent in the petitioner's request for guidance,
particularly given the facts alleged in the petition, is
whether, under the terms of those statutes, particularly § 30-
1-9, @ probate judge has an affirmative obligation to issue
marriage licenses at all, and whether, under the principles
articulated in such cases as Newton v, City of Tuscaloosa, 251
Ala, 209, 36 So, ad 487 (1948), and City of Birmingham v.
14
1140456
smith, 507 So, 24 1312 (Ala. 1987), and considering the
meaning of the term "marriage" intended by the Legislature in
those statutes, they may be deemed to survive, or mist be
stricken as wholly void, i¢ they are not to be applied solely
co a union between a man and a woman.’ These are substantial
questions. These questions, however, are not before us in an
adversary proceeding or in the context of a request for an
advisory opinion by the Governor or the Legislature, Nor has
exe been a showing that these questions are properly before
us on some other basis. I therefore concur in the order of
this court.
inthe act ‘ought not to be wholly void unless the invalid
portion is so important to the general plan and operation of
the law in its entirety as reasonably to lead to the
conclusion that it would not have been adopted if the
legislature had perceived the invalidity of the part so held
to be unconstitutional.'" 251 Ala. at 217, 36 So. 2d at 493
(quoting A, Bertolla & Sons v. State, 247 Ala. 269, 271, 24
So. 2d 23, 25 (1945)). "The test is ... whether the
legislature would have passed the statute without the
[unconstitutional aspect included therein]." 507 So. 2d at
1317.
1s
1140456
SHAW, Justice (concurring specially)
In the matter before this Court, Mobile County Probate
court Judge Don Davis references an order of the United states
District Court for the Southern District of Alabama that
states: "Ala. Const. Art. I, § 36.03 (2006) and Ala. Code
1975, § 30-1-19 are unconstitutional ...." Searcy v, Strange
(Ms. 14-0208, Jan. 23, 2015). Judge Davis then notes that on
February 8, 2015, Alabama's Chief Justice issued an
administrative order stating that “no Probate Judge of the
State of Alabama nor any agent or employee of any Alabama
Probate Judge shall issue or recognize a marriage license that
is inconsistent with Article I, Section 36.03, of the Alabama
Constitution or § 30-1-19, Ala. Code 1975."
‘he matter Judge Davis filed in this Court states that it
"is filed in order to give this Honorable Court acting as the
entixe Supreme Court of Alabama the opportunity to review the
application of the above Administrative order." ‘This
invitation to "review" the administrative order issued by the
Chief gustice, in my view, is a request for an advisory
opinion. However, only the governor or the legislature may
request an advisory opinion. Ala. Code 1975, § 12-2-10 ("The
16
1140456
Governor, by a request in writing, or either house of the
Legislature, by a resolution of such house, may obtain a
written opinion of the justices of the Supreme Court of
Alabama or a majority thereof on important constitutional
questions."). See also Opinion of the Justices No, 199, 236
Ala. 156, 158, 238 So. 24 326, 327 (1970) ("[T]he present
request originated not with the Governor, but with the Contest
Subcommittee of the State Committee ..., which course of
action is not within the purview of (§ 12-2-10). To hold
otherwise would add a new concept to the prerogatives of [§
22-2-10] and set a new precedent for litigants to request
advisory opinions whenever the constitutionality of a law
arises."). This Court is not empowered "'to give advisory
opinions, however convenient it might be to have these
questions decided for the government of future cases.'*
Stamps_v. Jefferson Cnty. Bd. of Hduc., 642 So. 2d 941, 944
(Ala. 1994) (quoting Town of Warrior v. Blaylock, 275 Ala
113, 114, 152 So. 24 661, 662 (1963) (emphasis omitted)). See
also AIRCO, Inc, v. Alabama Pub. Serv. Comm'n, 360 So, 24 970,
971 (Ala. 1978) ("To render an opinion based solely upon the
Commission's alleged improper actions (without seeking a
a7
1140456
remedy therefrom) or upon its prospective improprieties would
be to render impermissible advisory opinions.)
28
|
7b8c2141-c097-44a3-ac90-858fcc7b15cc | Ex parte Scottsdale Insurance Company. | alabama | Alabama Supreme Court | STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT OF ALABAMA
OCTOBBR TERM, 2014-2015
1140631
Ex parte Scottsdale Insurance Company. PETITION FOR WRIT OF
MANDAMUS (In re: Har-Mar Collision, Inc. v. Scottsdale
Insurance Company et al.) (Mobile Circuit Court: cv-11-838)
ORDER
The petition for a writ of mandamus of Scottsdale
Insurance Company directed to the Honorable Michael A
Youngpeter, Judge of the Circuit Court of Mobile County,
having been filed and submitted to the Court,
IT IS ORDERED that the petition for a writ of mandamus is
denied.
IT IS FURTHER ORDERED that the emergency motion to stay
the proceedings in the trial court is moot
Moore, C.J., and Stuart, Bolin, Parker, Shaw, Main, Wise,
and Bryan, JJ., concur.
Murdock, J., concurs specially.
1140631
MURDOCK, Justice (concurring specially}.
Scottsdale Insurance Company seeks mandamus relief fron
this Court in regard to the Mobile Circuit Court's decision to
deny its motion to dismiss certain claims against it for lack
of standing. I concur in the denial of this petition
As a general rule, interlocutory appellate review is not
available by way of a petition for a writ of mandamus seeking
to overturn a trial court's denial of a motion to dismiss or
its denial of a motion for a summary judgment. x par:
Liberty Nat'l Life Ing, Co., 825 So. 24 758, 761-62 (Ala.
2002). Among the exceptions to this general rule is one that
allows this Court to consider a petition for a writ of
mandamus when the petitioner's motion asserts a lack of
subject-matter jurisdiction in the trial court. Bx_paxte
Heal hcorp., 974 So. 24 288, 292 (Ala. 2007). Here,
Scottsdale Insurance asserts a lack of subject-matter
jurisdiction on the ground that Har-Mar Collision, Inc., the
plaintiff below, does not have "standing" to file an action
alleging breach of contract and bad faith because, according
to Scottsdale Insurance, Har-Mar is not a party to the
contract at issue.
1140631
It may be considered axiomatic, however, that a party who
claims a private right of action against another has standing
to assert its claim in our courts. The claim may fail for
lack of support in the law or in the facts, including, in the
case of a claim of breach of contract, a lack of proof of the
existence of a contract between the plaintiff and the
defendant. such a failure, however, is a failure on the
merits, not a failure of standing on the part of the plaintiff
to assert its claim and to attempt to prove the claim. And
the prospect of failure of a claim on such grounds certainly
does not deprive the trial court of the subject-matter
jurisdiction to decide whether a claim properly presented to
At does in fact find support in the law and in the facts. Our
precedents are now clear to this effect. See Ex parte
Home Loans Servicing, LP, (Ms. 1110373, Sept. 13, 2013]
So. 34__, ___ (Ala. 2013) (overruling Cadle v. Shabani, 950
So. 2d 277 (Ala. 2006), and discussing at length the
inapplicability of standing as a gatekeeping mechanism in
private-law actions, as opposed to public-law actions);
Ex parte Rhodes, 144 So, 34 316, 318-19 (Ala. 2013); Whitty v.
Montgomery cnty,, 141 So. 3d 1015, 1020-21 (Ala. 2013);
1140631,
EX parte MERSCORP, , 141 So, 3d 984, 991-92 (Ala. 2013);
Ex parte Kohlberg Kravis Roberts & Co., 78 So, 34 959, 978-79
(Ala. 2011); Steele v, Federal Nat'l Mortg. Ass'n, 69 So. 34
89, 91 n.2 (Ala. 2010); and Wyeth, Inc. v. Blue Cross & Blue
Shield of Alabama, 42 So. 3d 1216, 1219-21 (Ala. 2010).
|
fcbe0fa9-12b0-4ced-b522-6cf855361420 | Ex parte Corey Beantee Melton. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Corey Beantee Melton v. State of Alabama) (Shelby Circuit Court: CC-06-1139; Criminal Appeals : CR-08-1767). Writ Denied. No Opinion. | alabama | Alabama Supreme Court | RELEASED.
WAR 11 2011
ures CSOT OF MARA
Yotice: Tals opinion ie subject to forms! revision before publication in the advance sh
ot Southern Heporter. Readers are requested co nobity she Reporter of Deckelons, Alabata
Kepeilace Coures, 300 Dexter hvense, Nonegowary, Alabana 36104-3741 { (224) 229-0609), oF any
Cypoarapaical or’ other ezvora, in Seder ease corrections may be ade betore the opinion 1s
printed’ in Zoutharn Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2010-2011
1100327
Bx parte Corey Beantee Melton
PETITION FOR WRIT OF CERTIORARI
10 THE COURT OF CRIMINAL APPEALS
(tm xe: Corey Beantee Melton
ve
State of Alabama)
(Shelby Circuit Court, CC-06-1139;
Court of Criminal Appeals, CR-08-1767)
WOODALL, Justice.
WRIT DENIED, NO OPINION
Cobb, C.J., and Stuart, Bolin, Parker, and Shaw, JJ.,
Murdock, J., concurs specially
Main and Wise, JJ., recuse themselves.*
*gustice Main and Justice Wise were members of the Court of
Criminal Appeale when that court considered this case.
1100327
MURDOCK, Justice (concurring specially).
I concur in denying the petition for the writ of certiorari
in this case. The sole question raised in the petition to this
Court is whether the holding of the Court of Criminal Appeals in
its opinion in this case conflicts with the holding of the
United States Supreme Court in Walter v, United States, 447 U.S.
649 (1980). The facts of the two cases and, consequently, the
holdings of the two courts are sufficiently different that those
holdings do not conflict with one another. In Walter, there was
no dispute that the government clearly exceeded the scope of the
search actually conducted by a third party. Likewise, in the
present case, there is little dispute that the government
exceeded the scope of the search actually conducted by a third
party. In Walter, however, there was no dispute but that the
government exceeded the scope of any search that had been
authorized by the defendant. The same cannot be said here.
More specifically, the petition focuses on evidence
indicating that employees of Best Buy electronics retail stores
who were working on customers’ computers were restricted by
their employer from opening computer files they suspected of
containing illegal content. The petition does not address, nor
assert a conflict or an issue of first impression with respect
to, whether Corey Beantee Melton knew or reasonably should have
2
1100327
known that employees of Best Buy would need to open certain
folders on his computer and thereby gave up any expectation of
privacy with respect to such folders. Compare Commonwealth v.
Sodomsky, 939 A.2d 363 (Pa. Super. Ct. 2007) (finding that a
defendant reasonably should have expected that a third party
hired to install a new DVD drive in his computer might use
videos already in his computer as a method to test the newly
installed equipment) .
Although I concur in denying the petition for the writ of
certiorari in this case, I do not wish to be understood as
agreeing in all respects with the analysis employed by the Court
of Criminal Appeals. Among other things, I am concerned about
the treatment of the inquiry, in the second half of Part II of
that court's opinion, into whether any expectation of privacy
Melton retained in his computer files was "an expectation that
society is prepared to consider reasonable," __ $0. 3d at _,
as somehow different from the inquiry in the first half of Part
II into "whether Melton had a reasonable expectation of privacy
in the files," ___ So, 3d at __. By definition, the two
inquiries are the same. See United States v, Jacobsen, 466 U.S.
109, 113 (1983) ("A ‘search' occurs when an expectation of
privacy that society is prepared to consider reasonable is
infringed.)
|
58a726ac-425b-4249-8d13-bcad1ec83fbb | Chris Dwayne Williams v. Alabama Department of Corrections | alabama | Alabama Supreme Court | LEASED
supe COURT OE ALABAMA
STATS OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2019
1180400
Chris Dwayne Williams v. Alabama Department of Corrections
(Appeal from Montgomery Circuit Court: CV-18-667).
PARKER, Chief Justice.
AFFIRMED. NO OPINION
Seo Rule 53{a) (1) and (a) (2) (P), Ala. 8. App. P
Shaw, Wise, Bryan, and Mendheim, JZ., concur.
Mitchell, J., recuses himself.
|
e3fd4e28-0f32-4484-8d13-d38cca31bb52 | Ex parte Clarence E. Haynes, Talladega County Circuit Clerk, and Amber Edwards, Talladega County Juvenile Intake Officer. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Ex parte G.L. (In the Matter of H.C.L., a minor child)) | alabama | Alabama Supreme Court | RELEASED
Notice: This opinion is subject to fora! revision before publication in the advance
‘sheets of Southern Reporter. eaders are rogsasted to notity the Raporear Of Deciaionay
Alabama. appellate” Courtsy. 300, Dexter Avenue, Mantgcnacy, Alabama 36106-3761 (S00)
Zascaeto}, ‘of any typograpnice: or other errors, in eeder that corrections may be sade
otore the opinion is printed in gesthasn Rapoxtar
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2009
1081171,
Ex parte Clarence E. Haynes, Talladega County
Circuit Clerk, and Amber Edwards, Talladega County Juvenile
Intake Officer
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(in re: Ex parte G.L.
(in the Matter of H.C.L.,
@ minor child))
(Talladega Juvenile Court;
Court of Civil Appeals, 2080260)
SHAW, Justice.
‘The petition for the writ of certiorari is denied.
1081271
In denying the petition for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of Civil
Appeals' opinion, Horsley v, Horsley, 291 Ala. 782, 280 So.
24 185 (1973).
WRIT DENIED.
Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin,
Parker, and Murdock, JJ., concur.
|
c6e49f67-47eb-4f37-a060-dfe365faec05 | Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County. | alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 10, 2015
1140460
Bx parte State of Alabama ex rel, Alabama Policy Institute,
Alabama Citizens Action Program, and John &. Enslen, in his
official capacity as Judge of Probate for Elmore County.
ORDER
In an opinion issued on March 3, 2015, this Court ordered
Judge Don Davis, the Probate Judge for Mobile County,
"to advise thie Court, by letter brief, no later
than 5:00 p.m. on Thursday, March 5, 2015, as to
whether he is bound by any existing federal court
order regarding the issuance of any marriage license
other than the four marriage licenses he was ordered
to issue in Strawser (yv. Strange (Civil Action No
14-0424-cG-c, Jan. 26, 2015)]. [*]
on March 5, dudge Davis filed a motion seeking an 11-day
extension of time, until March 16, 2015, to comply with this
court's order. On March 9, Judge Davis filed a "Response to
Show Cauge Order" in which he asserts that he should not be
included in this Court's March 3 order out of concern that
doing so would require him to violate the federal district
‘The decision of the federal district court in strawser
was premised on its earlier decision in Searcy v. Strange,
[Civil Action No. 14-0208-CG-N, Jan. 23, 2015] __ F. Supp. 34
__. (8.D. Ala. 2015).
1140460
court order previously entered in Strawser.? Because we find
Judge Davis's concern to be without merit, and for the
additional reasons discussed below, Judge Davis's motion for
extension is denied, and he is added as a respondent to this
mandamus proceeding and is enjoined from issuing any further
marriage licenses contrary to Alabama law.
Judge Davis asks for the 11-day extension to respond to
this Court's question because he has asked for a "ruling* as
to that question from the Alabama Judicial Inquiry Conmission
(tthe are") :
"As grounds for this Motion, Judge Davis sets out as
follow:
"2, Judge Davis has sought instruction today
from the Alabama Judicial Inquiry Coumission.
"3, Proper response to this Court is best made
after [United States District Court] Judge Granade
rules and/or after the Alabama Judicial Inquiry
Commission rules."
(amphasis added.) Our inguiry to Judge Davis was intended as
a factual one. We fail to see what knowledge the JIC might
have as to the facts regarding whether Judge Davis is bound by
2, "corrected" copy of Judge Davis's response has since
been filed with this Cour.
aaaoaso
an order in any case other than Strawser v. Strange (Civil
Action No. 14-0424-CG-C, Jan. 26, 2015), or the fact of what
the gtrawser order says. As to the latter, the task of
reading the order in Strawser and understanding what it says
is the task of this court, not the JIC.”
Judge Davis also notes that he has asked the federal
district court "for a stay" of its order in Strawser. The
fact of this request offers no basis for delay here; indeed,
the prospect of such a stay by the federal court is compatible
with the action of this Court. Further, Judge Davis has made
no showing that the federal court order for which he seeks a
stay is one that has not already been executed, i.e., one that
concerns any license other than those already issued to the
plaintiffs in that case.
‘The latter task is to read the Strawser order and to
consider the import, if any, of that order as a decision by a
court in a coordinate judicial system. The JIC is a tribunal
commissioned solely for the investigation and prosecution of
"complaints" against judges regarding violation of the Canons
of Judicial mthics and the physical and mental ability of
judges to perform their duties. Ala. Const. 1901, § 156. It
is not a court of law, and it has no authority -- and no role
in the performance by this Court of its
nal duties as a court of law to decide the cases
brought before it.
1140460
Our opinion of March 3 serves as binding statewide
precedent. To ensure compliance with that precedent, we also
entered on that date and as part of our opinion an order
specifically directing Alabama probate judges not to issue
marriage licenses contrary to that precedent. Davis has made
no showing that he was, or is, the subject of any previously
entered federal court order other than the one issued in
Strawser, and he makes no showing that that order has any
continuing, binding effect on him as to any marriage-license
applicants beyond the four couples who were the plaintiffs in
that case and who already have received the relief they
requested. The inapplicability of the federal court order to
any other couple is evident from the terms of the order
itself:
"probate Judge Don Davis is hereby ENJOINED from
refusing to iseue marriage licenses to plaintiffs
due to the Alabama laws which prohibit same-sex
marriage. If Plaintiffe take all steps that are
required in the normal course of business as a
prerequisite to issuing a marriage license to
opposite-sex couples, Judge Davis may not deny them
a_license on the ground th intifts r
same-sex Couples er because it is prohibited by the
Sanctity of Marriage Amendment [, Ala. Const. 1901,
§ 36.03,] and the Alabama Marriage Protection Act [,
Ala, Code 1975, § 30-1-19,] or by any other Alabama
law or Order pertaining to same-sex marriage."
1140460
(capitalization in original; emphasis added.)
In his motion, Judge Davis himself places emphasis on the
same passages we have emphasized above, In the absence of a
showing otherwise, we are left to read this language in
accordance with its plain meaning: It grants injunctive
relief against gudge Davis only as "to [the] plaintiffs" in
Strawser. our reading of this plain language is confirmed by
the fact that the plaintiffs in Strawser sought relief only on
their own behalf, not on behalf of any others, and by the fact
that federal jurisprudence contemplates that a federal court
decides only the case before it, see Ex parte State ex rel.
natitute, IMs. 1140460, March 3, 2015]
So. 34, ___ (Part 11.¢.) (Ala. 2025),4 in turn binding the
‘as we noted in Part II.C., "'"[a] decision of a federal
district court judge is not binding precedent in either a
different judicial district, the same judicial district, or
even upon the game judge in a different case,"'*" So. 3d at
(quoting Camreta v, Greene, U.S. H.7, 1318.
GT 2020, 2033 n.7 (2021), quoting in turn i8 ¢. Moore et al.,
Moore's Federal Practice § 134.02(1] (dl, pp. 134-26 (3d ed.
2011)), much less upon'a defendant sued by new plaintiffs in
a different case. The principle quoted above from the United
States Supreme Court decision in Camreta was manifestly
reflected in orders entered on this date by the United states
istrict Court for the Middle District of Alabama, in which
that court chose to stay its consideration of a case similar
to Strawser and stated that "{tJhis court is not bound by
Searcy.". Hard v, Bentley (Case No. 2:13-cv-00922-WKW;
5
1140460
parties before then only with respect to the other parties in
the case.*
Notwithstanding the plain description of the activity
enjoined by the quoted language in the federal court order
requiring Judge Davis to issue licenses "to [the] plaintiffs"
in the Strawser case, dudge Davis questions whether the
following language somehow was intended to enjoin him in
relation to persons other than the four couples who sued and
obtained a judgment against him for their personal benefit:
March 10, 2015) (M.D. Ala.)
°tn Brenner v. Scott (No. 4:14cvi07, Jan. 1, 2015) (N.D.
Fla.), a case similar in many respects to the present one, the
court explained that "[t]he Clerk has acknowledged that the
preliminary injunction requires her to issue a marriage
license to the two unmarried plaintiffs," but that, in "the
absence of any request by any other plaintiff for a license,"
"(t}he preliminary injunction now in effect does not require
the Clerk to issue licenses to other applicants." See also
Vikram David Amar, Justia-Verdict, February 13, 2015;
https: //verdict justia. com/2015/02/13/ just-lawless-alabama-
state-court-judges-refusing-issue-sex-marriage-licenses
(explaining that generally a federal district court can enjoin
a defendant only with respect to the defendant's treatment of
plaintiffs actually before the court and that the remedial
limitation on federal district courts is defined by the
identity of the plaintiffs, not just the identity of the
defendants) (last visited March 10, 2015; a copy of the Web
page containing this information is available in the case file
of the clerk of the Alabama Supreme Court)
6
1140460
“This injunction binds Judge Don Davis and all his
officers, agents, servants and employees, and others
in active concert or participation with any of them,
who would seek to enforce the marriage laws of
Alabama which prohibit or fail to recognize same-sex
marriage."
‘The apparent purpose of this latter passage was to
clarity who is bound by the federal court's order, not what
action that order requires of those persons. ‘The question of
wwhat" is the subject of the clear statement in the previous
paragraph quoted above, i.e., that the enjoined parties are
directed to issue marriage licenses specifically “to [thel
plaintiffs." The subsequent reference to persons who "would
seek to enforce the marriage laws of Alabama" is in reference
to Judge Davis and his agents, employees, etc., to the extent
that they would seck to enforce the marriage laws of Alabaa
as “to [the] plaintiffs.” We are further confirmed in our
reading of the federal court's order by our understanding, as,
discussed in notes 4 and 5, supra, that federal court
jurisprudence contemplates that a federal district court
adjudicates the obligations, if any, of a defendant or
defendants only with respect to the plaintifé or plaintiffs in
the case before the court. See also Meinhold v, United States
Dep! fense, 34 F.3d 1469, 1480 (9th Cir. 1994) ("An
1140460
injunction ‘should be no more burdensome to the defendant than
necessary to provide complete relief to the plaintiffs.’
califano v. Yamasaki, 442 U.S. 682, 702, 99S. Ct. 2545, 2558,
61 L, Ra, 24176 (1979). ... This is not a class action, and
Meinhold sought only to have his discharge voided and to be
reinstated. ... Beyond reinstatement ..., DOD should not be
constrained from applying its regulations to Meinhold and all
other military personnel." (emphasis added)); Zepeda v, United
States Inmig, & Naturalization Serv., 753 F.2d 719, 727 (9th
Cir. 1983) ("A federal court ... may not attempt to determine
the rights of persons not before the court."); Hollon v.
Mathis Indep, Sch, Dist., 491 F.2d 92, 93 (sth Cir. 1974)
(holding that "the injunction against the School District from
enforcing its regulation against anyone other than [the
plaintiff] reaches further than is necessary" (emphasis
added) ).
‘As we explained in our March 3 opinion, this Court has
acted to ensure statewide compliance with Alabama law in an
orderly and uniform manner. We have before us in this case @
petitioner in the form of the State that has an interest in
and standing as to the actions of every probate judge in the
aas0aso
State. Moreover, as we noted in the opinion, Alabama's
probate judges took a variety of different positions in the
wake of the federal district court's decisions, and no single
circuit court has jurisdiction over all probate judges to
enable it to address that disarray. The inclusion of oudge
Davis, along with all the other probate judges in this state,
as a respondent subject to this Court's March 3 order as to
future margiage-License applicants is necessary and
appropriate to the end of achieving order and uniformity in
the application of Alabama's marriage laws. :
Based on the foregoing, Judge Davis is added to this
mandamus proceeding as a respondent and is subject to this
court's order of March 3, 2015. Section 30-1-9, Ala. Code
1975, provides that gudge Davis "may" issue "marriage
licenses." To the extent he exercises this authority, he must
issue those licenses in accordance with the meaning of the
term "marriage" in that Code section and in accordance with
other provisions of Alabama law, as discussed in our March 3
opinion.
Murdock, Main, Wise, and Bryan,
dissents
1140460
SHAW, Justice (dissenting)
As explained in my dissent in Ex parte State ex re.
Ali 2 , (Ms. 1140460, March 3, 2015)
So. 3d __, ___ (Ala. 2015), I do not believe that this Court
has jurisdiction in this case; therefore, I dissent.
a
|
6e438a17-bd5a-4380-91b0-a765623039da | Korte v. Betsey Bayless, ...Preserve Arizona -- Yes on Proposition 100 Committee... (Supreme Court Order) | arizona | Arizona Supreme Court | FILED
‘AUG 3 1 2000
SUPREME COURT OF ARIZONA
VIRGINIA KORTE; CARLA, Arizona Supreme Court
No. CV-00-0308-AP/EL
Plaintiffs/Appeliees,
Maricopa County Superior
court
No. cv 2000-01435
BETSEY BAYLESS, Secretary of
State for the State of Arizona,
Defendant,
PRESERVE ARTZONA--YES ON
PROPOSITION 100 COMMITTEE, RUTH
HAMILTON, Chairwoman,
Defendant /Appeliant.
ORDER
>
)
)
)
>
)
)
)
)
)
)
)
)
)
)
i
)
)
‘The court having considered this expedited appeal,
IT 18 ORDERED vacating and reversing the judgment of the trial
court entered on August 14, 2000. A formal opinion of the court will
follow in due course
DATED this lst day of August, 2000.
THOMAS A.
Chief Justice
Supreme Court No. CV-00-0308-AP/EL
Page 2 of 2
To:
Andrew § Gordon, Esq., Coppersmith & Gordon PLC
‘Timothy J Casey, Esq., Snell & Wilmer LLP
Hon. Janet A Napolitano, Arizona Attorney General
Hon. Joseph A Kanefield, Esq., W Scott Bales, Esq.
Jack Pfister
John # Lundin, Esq., Jeffrey D Gross, Esq., John D DiTullio, Esq,
Gallagher @ Kennedy
Hon Susan R Bolton, Maricopa County Superior Court
Hon Colin F Campbell, Presiding Judge, Maricopa County Superior Court
Michael K Jeanes, Clerk, Maricopa County Superior Court, Central Court
Building
ame
|
77f5a6e2-0631-40ee-977a-9a87e97d7dcd | MARK V. SCHEEHLE v JUSTICES OF THE SUPREME COURT et al | arizona | Arizona Supreme Court | SUPREME COURT OF ARTZONA
MARK V. SCHEEHLE, Arizona Supreme Court
No, CV=04-0103-co
Plaintife,
United states District
court
No. CIV-98-1095-PHx-siat
QUSTICES OF THE SUPREME COURT
OF THE STATE OF ARIZONA:
STANLEY G. FELDMAN, CHARLES =
JONES, FREDERICK J. MARTONE,
RUTH V. MCGREGOR, and THOMAS A.
2UAKET; JUDGES OF THE SUPERIOR
COURT OF THE STATE OF ARIZONA,
IN_AND FOR THE COUNTY OF
MARICOPA: MICHAEL R. MoVEY,
ROBERT D. MYERS, JONATHAN H.
SCHWARTZ and CHRISTOPHER M
SKELLY,
oprNnron
Defendants.
Certified Question from the
United states District Court for the District of Arizona
‘The Honorable Stephen M. McNamee, Chief Judge
QUESTION ANSWERED
MARK V. SCHEEHLE Fountain Hills
Plaintiff Pro Se
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
sy Paula S. Bickett, Chief Counsel, Civil Appeals
Attorneys for Defendants
SNOW, tude
a ‘The United States District Court for the District of
Arizona has asked us whether this Court ‘can promulgate court rules
mandating experienced attorneys to serve as arbitrators in light of
the statutory language of Arizona Revised statutes (*A.R.S.")
section 12-133 (2000) authorizing only voluntary service?" We h
Jurisdiction to decide the certified question pursuant to A.R.S
§ 12-1861 (2001) .*
2 We hold that this Court has authority to promulgate a
court rule authorizing the superior courts in each county of this
state to require active members of the state bar to provide limited
service as arbitrators, We further hold that the exercise of that
authority is neither constricted by, nor inconsistent with, A.R.S.
12-133.
FACTS AND PROCEDURAL HISTORY
x3 In 1971, the legislature passed a statute permitting the
superior courts to implement by court rule non-binding mandatory
arbitration programs. The statute assigned to the courts the
responsibility for appointing arbitrators in such cases and further
specified that courts opting to create a mandatory arbitration
Program ‘shall maintain a list of qualified persons within its
jurisdiction who have agreed to serve as arbitrators, subject to
the right of each person to refuse to serve in a particular
The district court also requested that we determine
whether the Maricopa County Superior Court had authority under
A.R.S. § 12-133 to promulgate a program mandating experienced
attorneys to serve as arbitrators. Because, as we explain in this
opinion, the Supreme Court Rule explicitly authorizes the superior
court to include active members of the Arizona bar on its list of
eligible arbitrators, this question is not presented by the facts
of this case. We thus decline to answer it.
2
assigned case.*? 1971 Ariz. Sess. Laws, ch. 142, § 1 (current
version codified at A.R.S. § 12-133(C) (2003)). The legislature
has amended the statute several times, to raise the mandatory
arbitration limits and to require, as opposed to merely permit,
superior courts to create mandatory arbitration programs, among
other reasons. See, e.g., 1978 Ariz. Sess. Laws, ch. 35, § 1; 1984
Ariz. Seas. Laws, ch. 53, § 1; 1986 Ariz. Seas. Lawa, ch. 360, § 1;
1991 Ariz. Sess. Laws, ch. 110, § 1; 1992 Ariz. Sess. Laws, ch. 9,
$2) 2000 Ariz. Seas. Laws, ch. 35, § 1.
ry In 1974, this Court promulgated the Uniform Rules of
Procedure for Arbitration. Rule 1 indicated that the Uniform Rules
were for those superior courts that implemented a mandatory
arbitration program under A.R.S. § 12-133, and further directed the
superior courts how to enact rules for such programs. Rule 2
specified how arbitrators would be appointed. That rule provided
that if the parties could not stipulate to an arbitrator, the court
would, through a randon selection procedure, appoint an arbitrator
froma list. The list would be comprised of ‘members of the Bar of
the State of Arizona residing within the County in which the Court
is located." Unif. R.P. Arb. 2(b) (1980). The rule allowed
* the statute also provided that an arbitrator be paid
fifty dollars per day for conducting an arbitration hearing. The
statute has since been amended to raise the payment to seventy-five
dollars per day. A.R.S. § 12-133(6)
This rule and its successor, Arizona Rule of Civil
Procedure 73, have been modified several tines. Rule 73 currently
3
attorneys to remove their names from the list and also allowed then
to refuse to serve if appointed as an arbitrator.
5 In 1984, pursuant to the rule and the statute, Maricopa
County added a local rule implementing the mandatory arbitration
program.*
x6 In 1986, the legislature amended the statute to require,
8 opposed to merely permit, superior courts to implement mandatory
arbitration programs by rule. in 1989 and 1990, the State Bar of
Arizona, the Maricopa County Superior Court, and other attorneys,
judges, and court administrators, petitioned this Court to remove
the provisions from Rule 2 allowing attorneys to opt out of
arbitration service absent good cause. In response, we adopted
four changes to Rule 2. First, we omitted the provisions allowing
practicing attorneys to renove their names from the list of
Potential arbitrators. Second, we specified the reasons that would
permit an arbitrator to be excused from service. Third, we added
@ provision allowing an attorney who “has served as an Arbitrator
provides that ‘all residents of the county in which the court is
located, who, for at least four years, have been active members of.
the State Bar of Arizona” may be placed on a county's list of
eligible arbitrators. Ariz. R. Civ. P. 73(b) (1). Tt also permits
the superior court to place on this list other lawyers of any bar.
both active and inactive, who “have agreed to serve as arbitrators
in the county where the action is pending.” Ariz. R. Civ. P.
73(b) (2).
<The Maricopa County Superior Court initially set the
mandatory arbitration threshold at $15,000. Ariz. Local R. Prac.
Super. Ct. (Maricopa) 3.10 (1984), In 1994 it adopted the $50,000
maximum threshold authorized by A.R.S. § 12-133.
Pursuant to these Rules for two or more days during the current
year to be excused." Unif, R.P. Arb. 2(e)(3) (1992). Fourth, we
‘added a comment to the rule confirming that "[i]t is the obligation
of all qualified lawyers to serve as Arbitrators and only
exceptional circumstances should justify removal from the list.*
Unit. R.P, Arb. 2 emt, (1992). Im 2000, the Uniform Rules for
Arbitration were incorporated into the Arizona Rules of civil
Procedure as Rules 72-76. Rules 1 and 2 of the Uniform Rules are
how renumbered respectively as Arizona Rules of Civil Procedure 72
and 73.°
0 In this case, attorney Mark V. Scheehle challenges the
provision of Rule 73 authorizing the Maricopa County Superior Court
to include him on its list of eligible arbitrators without his
consent. Scheehle’s federal court complaint alleged that mule 73
violated a number of his federal constitutional rights. scheehle
also raised a pendent state law claim that Rule 73 was invalid
because it compelled him to serve as an arbitrator, whereas A.R.S.
§ 12-133 authorized the appointment only of arbitrators who had
agreed to serve.
5 In 2000, this provision was amended to excuse an
appointed arbitrator who had “completed contested hearings and
ruled as an arbitrator . . . in two or more cases assigned during
the calendar year.* Ariz. R. Civ. P. 73(e) (3).
‘The balance of this opinion will refer to these rules as
they are currently codified in the Arizona Rules of Civil
Procedure.
x8 The district court granted summary judgment a
Scheehle on his federal civil rights claims. It then declined to
exercise supplemental jurisdiction over the state law clains after
resolution of all the federal questions and accordingly dismissed
the state law claims. The Ninth Circuit initially affirmed the
decision, Scheehle v. Justices of the Supreme Court, 257 F.3d 1082
(9th Cir, 2001), but then withdrew that opinion. Scheehle v.
Justices of the Suprene Court, 269 P34 1127 (9th Cir. 2001). It
then certified a question to this Court asking whether A.R.S. § 12-
133 mandated compulsory participation of attorneys as arbitrators
ry This Court, addressing only that very limited question,
held that A.R.S. § 12-133 does not require that lawyers serve as
arbitrators. Scheehle v. Justices of the Supreme Court, 203 Ariz.
520, $22, 4 6, 57 P.34 379, 381 (2002). after our decision, the
Ninth Circuit remanded the case to the district court for further
consideration. Scheehle v. Justices of the Supreme Court, 315 F.3d
3191 (9th cir. 2003).
mo Upon remand, the district court again reaffirmed its
rejection of Scheehle’s federal constitutional arguments and
dismissed them from this case
mi In the same order, the district court certified the
following question to this Court:
Whether the Arizona Supreme Court under its
exclusive constitutional authority to regulate
the practice of law can promulgate court rules
6
mandating experienced attorneys to serve as
arbitrators in light of the statutory language
of A.R.S. § 12-133 authorizing only voluntary
The district court stayed all further consideration as to
Scheehle’s state law claim pending the anewer to its certified
question.”
ANALYSIS
uz In his briefing on the certified question, Scheehle makes
three alternative arguments. First, Scheehle argues that Rule 73
violates the Takings Clause, U.S. Const. amend, V, and the Equal
Protection Clause, U.S. Const. amend. XIV. Second, he argues that
Rule 73 impermissibly conflicts with the legislation authorizing
the mandatory arbitration program. Third, he asserts that this
Court’s power to regulate the practice of law does not extend to
compelling attorneys to serve as arbitrators. we analyze each
argument in turn,
The District Court Was Already Decided scheehi
Federal Law Claims.
m3 Scheehle acknowledges that the district court has already
dismissed his federal constitutional claims, But he nonetheless
asserts that it would be improper for this Court “to answer the
Upon certification, Scheehle objected to the
participation of Justices McGregor, Berch, Ryan, and Murwitz in
answering the certified questions because they are defendants in
the underlying federal court complaint. We considered and rejected
Scheehle’s objections in a previous order that is appended to thi
decision and incorporated herein.
7
certified questions, when the district court seeks answers from
this Court devoid of any analysis of the impact of the Constitution
of the United States on such state law authority.” We disagree
4 It is not the role of this Court in responding to a
certified question of state law to review the federal law rulings
of the certifying federal court. The authority pursuant to which
we respond to the district court's questions permits us to answer
only questions of state law. A.R.S. § 12-1861 (The supreme court
may answer questions of law certified to it . . . if there are
involved in any proceedings before the certifying court questions
of the law of this state which may be determinative of the
cause"). This opinion is thus limited to the question certified:
Does this Court have authority under state law to promulgate the
rules at issue and, if it does, is that authority limited by the
provisions of A.R.S. § 12-1337
Rule 73 Does Not Conflict with A.R.S. § 12-133,
ms Scheehle next contends that A.R.S. § 12-133(c), by
requiring each superior court to “naintain a list of qualified
persons within its jurisdiction who have agreed to serve as
arbitrators," limits the court to appointing arbitrators from that
List. A.R.S. § 12-133(c). We disagree.
wus In interpreting a statute, we “try to determine and give
effect to the legislature's intent.” Hayes v. Cont’l Ing. Co., 178
Ariz. 264, 268, 872 P.2d 668, 672 (1994). T£ we cannot do so by
looking at the plain language of the statute, “we consider the
statute’s context; its language, subject matter, and historical
background; its effects and consequences; and ite spirit and
purpose." Id. We also avoid interpretations that unnece:
ily
implicate constitutional concerns. In re Shannon, 179 Ariz. 52,
78, 876 P.2d 548, 574 (1994) (opting for statutory interpretation
that does not limit this court in interpreting range of sanctions
it could impose on attorneys so as not to implicate constitutional
concerns); Hayes, 178 Ariz. at 273, 872 P.2a at 677.
7 The language upon which Scheehle relies has been in
A.R.S. § 12-133 since its adoption in 1971. ‘The full text of the
relevant provision states:
‘The court shall maintain a list of qualified
persons within its jurisdiction who have
agreed to serve as arbitrators, subject to
the right of each person to refuse to serve
in a particular assigned case and subject
further to the right of any party to show
good cause why an appointed arbitrator should
Rot serve in a particular assigned case. ‘The
court rules shall provide that the case
Subject to arbitration shall be assigned for
hearing to a panel of three arbitrators, or
in the alternative, to a single arbitrator,
each of whom shall be selected by the court.
ALRS. § 12-133(¢).
us Scheehle argues that under this statute the list of
voluntary arbitrators is the only source from which the superior
court may appoint arbitrators. Nowhere, however, does the statute
say so. Rather, the plain text of the statute vests in the
superior court the authority, without limit, to select each
arbitrator. “The court rules shall provide that the ca:
subject
to arbitration shall be assigned . . . to [an arbitrator or
arbitrators] . . . each of whom shall be selected by the court.*
ALR.S. § 12-233(¢)
m9 While implying a limitation not explicitly stated in a
statute may be appropriate in some circumstances, it is not in this
case for several reasons. First, the legislature has been aware
since 1974 that this Court, by rule, authorized superior courts to
Place active members of the bar on their lists of eligible
arbitrators. After we promulgated the rule, the legislature
repeatedly amended the statute, but never indicated that the court
could appoint only arbitrators who volunteered. we, therefore
presume that the legislature approved of the rule’s operation. as
we have said in the context of statutory interpretation:
it is universally the rule that where a
statute which has been construed by a court
of last resort is reenacted in the same or
Substantially the same terms, the legislature
is presumed to have placed its approval on
the judicial interpretation given and to have
adopted such construction and made it part of
the reenacted statute.
State v. Superior Court of Pima County, 104 Ariz. 440, 442, 454
P.2d 982, 984 (1969) (quoting Madrigal v. indus. Comm'n, 69 Ariz
338, 142, 210 P.24 967, 971 (1949)).
20 After this Court promulgated the rule authorizing
superior courts to appoint active members of the bar as
10
arbitrators, the legislature amended the statute both to increas
the jurisdictional limit on cases that must be referred to
mandatory arbitration and to require, as opposed to merely
authorize, each superior court to adopt a mandatory arbitration
Program. In doing so the legislature mist have anticipated a
corresponding increase in the demand for arbitrators. Yet it made
no provision for additional arbitrators. We therefore presume that
the legislature relied on this Court's rule authorizing the service
of the members of the bar as arbitrators to meet that demand,
21 Second, nothing in the statute seeks to regulate
attorneys. To imply in the statute a limitation on the court's
power of appointment would limit not only a superior court's power
to appoint arbitrators but also the scope of this Court's power to
require bar menbers to assist in the administration of justice by
authorizing superior courts, on a limited basis, to appoint menbers
of the bar as arbitrators. We do not interpret a statute as
intending to limit the court's ability to otherwise act unless the
legislature explicitly indicates such an intent. Hayes, 178 ariz.
at 273, 872 P.2d at 677. None is evident here
s22 As Scheehle acknowledges, this Court has exclusive
authority over the regulation of attorneys. “[T]he practice of law
is a matter exclusively within the authority of the Judiciary. The
determination of who shall practice law in Arizona and under what
condition is a function placed by the state constitution in this
un
court." Hunt v, Maricopa County Employees Merit Sys. Comm'n, 127
Ariz. 259, 261-62, 619 P.24 1036, 1038-39 (1980).
23 This Court fulfills the administrative responsibilities
assigned to it under the constitution by, among other methods,
promulgating rules. Those rules are distinct from those enacted by
state administrative agenci
Pursuant to legislation. when this
Court promulgates rules pertaining to attorneys or to court
Procedures, it does so pursuant to its own constitutional authority
over the bench, the bar, and the procedures pertaining to them.
Heat Pump Equip. Co. v. Glen Alden Corp., 93 Ariz. 361, 363, 380
P.2d 1036, 1017 (1963) (stating that courts have constitutional
Power to promulgate rules on judicial matters); Burney v. Lee, 59
Ariz. 360, 363, 129 P.2a 308, 309 (1942) (courts have power to
promulgate rules to fulfill constitutional mandates).
24 Such rules are valid even if they are not completely
cohesive with related legislation, so long as they are an
appropriate exercise of the court’s constitutional authority.
Although the legislature may, by statute, regulate the practice of
Jaw, such regulation cannot be inconsistent with the mandates of
this Court. Creasy, 198 Ariz. at 544, 4 18, 12 P.3d at 219
* Since the early days of statehood, we have recognized
that our constitution gives authority to this Court to regulate the
Practice of law. See, e.g., State Bar of Ariz. v. Ariz. Land Title
& Trust Co., 90 Ariz. 76, 366 P.2d 1 (1961); In re Miller, 29 Ariz.
582, 244 P. 376 (1926); In re Bailey, 30 Ariz, 407, 248 P. 29
(2326).
12
(stating that legislature cannot authorize by statute activity that
would result in the unauthorized practice of law because a court
rule governing the practice of law “trumps statutory law"); see
also Ariz. Land Title & Trust Co., 90 Ariz. at 95, 366 P.2d at 14
(although the legislature may impose additional restrictions which
affect the licensing of attorneys, it cannot infringe on the
ultimate power of the courts to determine who may practice law")
(citing In re Greer, 52 Ariz. 385, 389-90, 81 P.24 96, 98 (1938);
Conway, 60 Ariz. at 81, 132 P.2d at 988 (*When, however[,) it
appears that the legislative rule unduly hampers the court in the
@uties imposed upon it by the Constitution, the rule adopted by the
court will prevaii.*).
ss We are reluctant to imply a statutory limitation that
would create a conflict in the constitutional prerogatives of
Separate branches of Arizona government. Shannon, 179 Ariz. at 78,
876 F.2d at 574; Hayes, 178 Ariz. at 273, 872 2.24 at 677.
Scheehle’s proposed interpretation would unnecessarily create such
a conflict.
$26 We therefore hold that A.R.S, § 12-133 does not limit the
courts right to appoint persons other than volunteers to serve as
arbitrators
B
This Court’s Responsibility to Administer an
Integrated Judicial system Gives it Authority
to Promilgate Rules Requiring Limited Service
by Attorneys to the Judiciary.
27 Scheehle finally argues that the power to regulate the
practice of law does not permit this Court to oblige attorneys to
serve as court-appointed arbitrators because appointing such
arbitrators “is not a function of regulating the practice of law.*
This argument reflects a misunderstanding of the constitutional
basis from which this Court derives its power to regulate the
Practice of law.’ This Court's power to regulate the practice of
law is a function of its responsibility to administer an integrated
judiciary. The power to administer the judicial branch allows this
Court to regulate the practice of law to further the administration
of justice.
x28 Article 6, section 1 of our constitution vests the
judicial power "in an integrated judicial department,” which
includes a11 of the courts of this state. Because “the practice of
law is so intimately connected and hound up with the exercise of
judicial power in the administration of justice . . . the right to
° Wholly apart from the power to regulate the bar given by
our state constitution to the judiciary, extensive authority
supports the inherent authority of the courts to regulate the
practice of law. Shannon, 179 Ariz. at 75, 876 P.2d at 571 (*the
judiciary’s authority to regulate and control the practice of law
is universally accepted and dates back to the year 1292.");
Bridegroom v. State Bar, 27 Ariz. App. 47, 49, 550 P.2d 1089, i091
(2976) (“There is no question but that the Supreme Court has
inherent power to integrate the bar of this state.*) (citations
omitted) .
a4
define and regulate its practice naturally and logically belongs to
the judicial department.* Shannon, 179 Ariz. at 76, 876 P.24 at
572 (quoting In re Integration of Neb. state Bar Ass'n, 275 N.W.
265, 268 (1937)).
m9 Consequently, the Arizona Constitution's creation of an
integrated judiciary gives to this Court the power not just to
Fegulate all courts but also to regulate the practice of law.
Shannon, 179 Ariz. at 76, 876 P.2d at 572; see also Creasy, 198
Ariz. at $41, 97, 12 P.3d at 216 (“The court’s authority over the
practice of law is also based on the creation of an integrated
judicial department and the revisory jurisdiction of this court as
Provided in article VI sections 1 and 5(4) of the arizona
Constitution. *); In re Smith, 189 Ariz. 144, 146, 939 2.24 422, 424
(2997) (The State Bar exists only by virtue of this court’s rules,
adopted under authority of article III and article VI, §§ 1 and 5
of the Arizona Constitution.) .
30 The constitution’s mandate in article 6, section 3 that
this Court shall have ‘administrative supervision” over the courts
of this state enables this Court to supervise judicial officers,
including attorneys. “Administrative supervision contemplates
managing the conduct of court personnel. . . . attorneys are
universally recognized as ‘officers of the court,’ . . . and
officers of the court, attorneys are amenable to the court as their
Superior.* Shannon, 179 Ariz. at 76-77, 876 P.2d at 573 (citations
15
omitted); Bailey, 30 Ariz. at 412, 248 P, at 30 (quoting In re
Splane, 16 A. 421 (Pa. 1899)) (*The attorney is an officer of the
court, and is brought into close and intimate relations with the
court.*)
31 By virtue of our constitutional power over attorneys ai
officers of the court, this Court created the State Bar of Arizona.
Ariz. R. Sup, Ct. 32(a)(1). We require those practicing law in
this state to be members of this bar. Ariz. R. Sup. Ct. 31. As
officers of the court, State Bar members are invested with
significant rights and responsibilities. As the United states
Supreme Court has observed:
As an officer of the court, a menber of the
bar enjoys singular powers that others do not
possess; by virtue of admission, members of
the bar share a kind of monopoly granted only
to lawyers. Admission creates a license not
only to advise and counsel clients but to
appear in court and try cases; as an officer
Of the court, a lawyer can cause persons to
drop their private affairs and be called as
witnesses in court, and for depositions and
other pretrial processes that, while subject
to the ultimate control of the court, may be
conducted outside courtrooms.
In re Snyder, 472 U.S. 634, 644 (1985). Attorneys are invested
with these powers because they have an individual and collective
role in achieving “(t]he primary duty of courts (which) is the
Proper and efficient administration of justice.* Shannon, 179 Ariz.
at 76, 876 P.2d at 572 (quoting In re Integration of Neb. State Bar
Ass‘n, 275 N.W. at 268)
16
32 Contrary to Scheehle’s argument, this Court’s exclusive
authority to regulate the practice of law is therefore not
independent from its responsibility to supervise an integrated
judiciary, Tt is derived from that very power. The power extended
to this Court by the constitution includes the authority to
Promilgate regulations assigning limited quasi-judicial functions
to lawyers as judicial officer
23 Scheehle cites Schware v. Board of Examiners of the State
of New Mexico, 363 U.S. 232, 239 (1957), and its progeny, for the
Proposition that any qualification a state places on the entry to
the practice of law ‘mist have a rational connection with the
applicant's fitness or capacity to practice law.* The obligation
to perform limited service as an arbitrator, however, is not a
restriction placed on the entry to the practice of law in this
state. Rather it is a uniform regulation requiring limited service
to the judiciary for those already admitted to practice relating to
their roles as officers of that judiciary.
4 A state may engage in reasonable regulation of licensed
professionals. See, e.g., Lupert v. Cal. State Bar, 761 F.24 1325,
3328 (9th Cir. 1985) (citing Williamson v. Lee Optical, 342 U.S.
483, 487-89 (1955)); Watson v. Md., 218 U.S. 173, 177 (1910); se0
also Ohralik v. Ohio state Bar Ase’n, 436 U.S. 447, 460 (1978).
Our precedents involving attorney regulation underscore this point.
25 For example, this Court has rejected a challenge to its
uv
constitutional authority to require annual continuing legal
education ("CLE") as a condition of continued practice. smith, 189
Ariz. at 146, 939 P.2d at 424; Ariz. R. Sup. Ct. 45. Compliance
with the mandatory CLE rule generally requires not only that an
attorney spend unreimbursed time attending the courses but also
that the lewyer pay for the course. Nevertheless, we rejected a
constitutional challenge to such a rule because, like the
requirement to provide limited arbitration services to benefit the
Judiciary, “auch requirements . . . are rationally related to the
court’s obligation to serve the public interest.* zd.
36 An attorney's right “to pursue a profession is subject to
the paramount right of the state . . . to regulate .
professions . . . to protect the public . . . welfare." Cohen v.
State, 121 Ariz. 6, 10, 588 P.2d 299, 303 (2978) (citing Ariz. state
‘Bd. of Dental Exam’rs v. Hyder, 114 Ariz. 544, 546, 562 P.24 727,
719 (1977)). In addition to exacting time and money to meet the
continuing standards necessary to retain a license, the state may
exact @ reasonable consideration from those who are engaged in a
profession that it regulates. Duncan v. Truman, 74 Ariz. 328, 332,
248 P.24 879, 883 (1952) (*[A] ‘License’ is a ‘permit, granted by
the sovereign, generally for a consideration . . . to a person,
firm, or corporation to pursue some occupation or to carry on sone
business subject to regulation
) (quoting State Bd. of Barber
sxam‘rs v. Walker, 67 Ariz, 156, 167, 192 P.2d 723, 730 (2948))
18
(emphasis added). that consideration need not be exclusively
monetary, but can also be in the form of limited service to the
bench, bar, or community
337 Scheehle, citing zarabia v. aradshaw, 185 Ariz. 1, 912
P.2d 5 (1996), argues that whatever this Court's authority to
tion in
compel service from attorneys without adequate compen:
individual cas
+ it has no authority to enact rules that
systematically deprive attorneys of their time, no matter how small
the deprivation. We do not so read Zarabia.
38 Jn Zarabia, attorneys and defendants challenged Yuna
County's procedures for providing criminal representation to
indigent defendants. 185 Ariz. at 2, 912 P.2d at 6. At the tine,
Yuma County had no public defender’s office and provided
representation to indigent defendants in criminal cases through a
mix of contract attorneys and attorneys appointed from the private
bar. Id. The private practitioners were appointed on a rotational
basis and were obliged to provide the representation regardless of
experience or expertise. These lawyers were reimbursed “a total of
$375 for up to twenty hours’ work on a case ($17.50 per hour), and
$50 an hour if more than twenty hours [were] required to complete
the representation.” Id. at 3, 912 P.2d at 7.
x9 In reviewing that appointment system, we decided no
constitutional questions. Rather we held that the system violated
both A.R.S. § 13-4013, which requires that an attorney receive
a3
*reasonable* compensation when appointed to represent an indigent
criminal defendant, and Arizona Rule of Criminal Procedure 6.5(C),
which requires that in appointing an attorney to represent a
Gefendant in a criminal matter the court take “into account the
skill Likely to be required in handling a particular case.”
Zarabia, 185 Ariz. at 3, 912 P.2d at 7
40 We expressly recognized in zarabia, however, that the
court has authority to require a lawyer's services, even on a pro
bono basis, to assist in the administration of justice. ~{NJothing
we say here should be interpreted as limiting a judge's inherent
authority to achieve justice by appointing a particular lawyer to
represent a [party] in a particular case, even if the appointment
is pro bono or causes financial hardship to the appointed lawyer.”
Id, at 4, 912 P.2d at 8. We thus confirmed, as have other courts,
the ability of a court to require attorneys, by virtue of their
effice, to provide pro bono publico service in certain
circumstances. See, e.g., United States v. 30.64 Acres of Land,
795 F.24 796, 800 (9th Cir. 1986) ("Courts have long recognized
that attorneys, because of their profession, owe some duty to the
court and to the public to serve without compensation when called
on... . This duty of public service is a condition of
Practicing law, and constitutes neither a taking under the fifth
amendment, nor involuntary servitude under the thirteenth
amendment.) (citations omitted): see algo United States v. Dillon,
20
346 F.2d 633 (9th Cir. 1965) (the state can condition a lawyer‘s
ability to practice law upon the acceptance of certain
responsibilities in the furtherance of the administration of
justice)
wat Stressing that such power was limited, however, we
remarked upon the difference between “requiring @ lawyer to handle
one case or @ few and conscripting lawyers to handle “all cases
regardless of their ability or willingness to do so." Zarabia, 185
Ariz. at 4, 912 P.2d at 8, We therefore noted that “{w)hatever
appointment process a court adopts should reflect the principle
that lawyers have the right to refuse to be drafted on a systematic
basis and put to work at any price to satisfy a county's obligation
vo provide counsel to indigent defendants.* rd.
42 Contrary to the appointment system in Zarabia, which was
neither quantitatively nor qualitatively limited, the system
authorized by Rule 73 contains several inherent limitations.
First, Rule 73 does not, in and of itself, compel a lawyer to be an
arbitrator. It merely authorizes superior courts to place
attorneys on a list of eligible arbitrators. thus, presumably, if
sufficient volunteers exist in a particular county to meet that
county’s need for arbitrators, that county’s superior court need
not place eligible members of the state bar on the list of persons
eligible for appointment.
43 Second, Rule 73 provides for random appointment of
au
arbitrators from the list. Thus, placement on the list does not
necessarily result in service as an arbitrator in any given year.
m4 Third, when a lawyer is randomly selected to serve, Rule
73 explicitly limits the extent of that service, Under Rule 73, an
attorney cannot be compelled to accept arbitrations in any year in
which the attorney has already held hearings and ruled on two
matters. According to Schechie’s own affidavit, service as an
arbitrator typically requires only four to eight hours of his time
Because Schechle
and imposes only minor out-of-pocket expen
was asked to serve twice in 1997, he would have provided no more
than sixteen hours of arbitration service in that year. this
simply does not constitute the systematic deprivation condemned in
zarabia.
sas Citing Hackin v. Lockwood, 361 F.2d 499, 503 (9th Cir.
1966), Scheehle also argues that this Court cannot condition his
practice of law on the deprivation of his constitutional rights.
The district court, however, has already determined that no such
rights were infringed upon here.
“When the annual time an attorney might be required to
serve as an arbitrator is combined with the fifteen hours of
continuing legal education an attorney is obliged to obtain, it is
still well within the range of training hours required by state
administrative agencies from other professionals. See, @.9.,
A.A.C. R4-1-453(D) (requiring accountants to obtain between sixty
and eighty hours of continuing education every two years); ALAC,
R4-26-207 (requiring psychologists to obtain sixty hours every <wo
years); A.A.C. R4-11-1203 (requiring dentists to obtain seventy-two
hours every three years); A.A.C. R4-16-101 (requiring physicians co
obtain forty hours every two years).
22
conctusroN
a6 We therefore answer the Certified Question as follows
This Court has the constitutional authority to require active
menbers of the state bar to serve as arbitrators pursuant to
Arizona Rules of Civil Procedure 73. Further, A.R.S. § 12-133 does
not restrict this Court’s authority to promulgate that rule.
G Murray Snow, Juage™
Ruth V. McGregor, Chief Justice
Rebecca white Berch, Vice Chief Justice
Michael D. Ryan, Justice
Rndrew D. Hurwitz, Justice
‘The Honorable Charles E. Jones recused himself; pursuant
to Article 6, Section 3, of the Arizona Constitution, the Honorable
G. Murray Snow, Judge of the Court of Appeals, Division One, was
designated to sit in his stead.
23
SUPREME COURT OF ARIZONA
MARK V. SCHEBHLE, Arizona Supreme Court
No. CV-04-0103-cQ
Plaintite,
United States District
court
No. CV-98-1095-PHX-siat
QUSTICES OF THE ARIZONA SUPREME
COURT OF THE STATE OF ARIZONA:
STANLEY G. FELDMAN, CHARLES E.
JONES, FREDERICK J. MARTONE,
RUTH V. MCGREGOR, and THOMAS A.
ZLAKET; JUDGES OF THE SUPERIOR
COURT OF THE STATE OF ARIZONA,
IN AND FOR THE COUNTY OF
MARICOPA: MICHAEL R. MevEY,
ROBERT D. MYERS, JONATHAN H.
SCHWARTZ and CHRISTOPHER M.
SKELLY,
ORDER
Defendants.
When this Court accepted questions certified to it by the
United States District Court for the District of Arizona, chief
Justice Jones recused himself, Thereafter, the Plaintiff in the
underlying federal action, Mark V. Scheehle, filed with this Court
an “Objection to Defendants in Plaintiff’s Federal Action
Participating in the Adjudication of the Questions Certified to
this Court by the District Court." In it, ur. Scheehle argues that
the remaining four permanent members of this Court, gustices
MeGregor, Berch, Ryan, and Hurwitz, are disqualified from answering
the certified questions. We here decide that objection.
FACTS AND PROCEDURAL HISTORY
‘The Maricopa County Superior Court assessed a $900 fine
against ur. Scheehle for his refusal to accept assignment as an
arbitrator pursuant to court rules that require Arizona attorneys
with more than five years’ of experience to serve as arbitrators in
matters in which a Limited damage amount is at issue. Mr. Scheehle
filed a special action in this Court challenging the fine and the
right of the superior court to require his service as an
arbitrator. This Court declined to exercise its special action
jurisdiction. Thereafter, instead of seeking appellate review of
the fine, Mr. Scheehle filed a civil rights complaint in federal
court pursuant to 42 U.S.C. § 1983 (2000)
Im his First Amended Complaint in the federal action, Mr.
Scheehle named a number of defendants. Among them he named che
superior court judge who had assessed the fine, several other
judges of the superior court who enforced the arbitration program,
the Maricopa County Superior Court, and “the Justices of the
Arizona Supreme Court, Stanley G. Feldman, Charles =. Jones,
Frederick J. Martone, Ruth V. McGregor, and Thomas A. Zlaket.*
Although Mr. Scheehle sued all of the judyes
individually, he specified that the action was brought against them
in their official capacities. Thus, he alleged, they were not
immune from his federal civil rights action.
In the federal complaint, Mr, Scheehle attacked the
arbitration program on both constitutional and state law grounds.
He asked for declaratory relief establishing that the Arizona
statute and court rule implementing the program are
unconstitutional. He also sought injunctive relief ordering the
Maricopa County Superior Court to remove his name from the list of
arbitrators and enjoining the court from enforcing the $900
sanction entered against him. He finally requested that he be
awarded costs and his co-counsel’s reasonable attorney fees
pursuant to 42 U.S.C. § 1988(b) (2000).!
The district court entered summary judgment in the
defendants’ favor on all of Mr. Scheehle’s § 1963 claims and
declined to exercise supplemental jurisdiction over the State law
claims. The Ninth Circuit initially affirmed, Scheehle v. Justices
of the Supreme Court, 257 F.34 1082 (9th Cir. 2001), but later
withdrew the opinion. Scheehle v. Justices of the Supreme court,
269 F.3d 1127 (9th Cir. 2001). The Ninth Circuit then certified a
2 Of course “[sJuits brought against individual officers
for injunctive relief are for all practical purposes suits against.
the State itself. Hutto v. Finney, 437 U.S. 678, 700 (1978). The
public officials sued are not personally liable for any attorneys"
fees that might be awarded. Id.; see also Scott v. Flowers, 910
F.2d. 201, 213 (Sth Cir. 1990) (“Any such [attorneys’ fees) award,
however, must be paid by the state and cannot be assessed against
the defendants in their individual capacity, as the injunctive
relief sought and won by Scott can be obtained from the defendants,
only in their official capacity as commissioners."); Echols v.
Parker, 909 P.2d 795, 800 (Sth Cir. 1990) (concluding State liable
for attorneys’ fees and costs under 42 U.S.C. § 1988 when county
prosecutor, district attorney, and justice court judge were sued in
Official capacities as enforcing agente of an unconstitutional
statute)
question to our Court asking whether Arizona Revised statutes
(A.R.S.") section 12-133 (Supp. 2001) authorized a system of
compulsory participation of attorneys in the mandatory arbitration
system, Scheehle v. Justices of the Supreme Court, 203 Ariz. 520,
521, 4 1, $7 P.34 379, 380 (2002),
After accepting jurisdiction of the certified question,
all justices named in the complaint recused themselves. ‘Their
positions on this Court were filled for purposes of responding to
the certified question by four judges from the Court of Appeals and
@ judge from the Yuma County Superior Court.! This court then
Fesponded that A.R.S. § 12-133 does not authorize the creation of
an arbitration system mandating lawyer participation. rd. at 522,
416, 57 P.3d at 381, The Ninth Circuit then remanded the case to
the district court for further consideration in light of our
answer. Scheehle v. Justices of the Supreme Court, 315 F.3d 1191
(seh cir. 2003).
After remand, pursuant to A.R.S. § 12-1861 (2003), the
Gistrict court certified the following state law question to this
court:
‘These judges were the Honorable Edward C. Voss, Susan A.
Ehrlich, John C. Genmill, and Jefferson L. Lankford, of the Arizona
Court of Appeals, Division one, and the Honorable Tom C. Cole,
Presiding Judge of the Yuna County Superior Court. Scheehle, 203
Ariz. at 523 n.2, $7 P.2d at 382.
4
Whether the Arizona Supreme Court under ite
exclusive constitutional authority to regulate
the practice of law can promulgate court rule:
mandating experienced attorneys to serve as
arbitrators in light of the statutory language
of A.R.S. § 12-133 authorizing only voluntary
service?
Tf the answer to the above question is in the
affirmative, then the district court aleo requests that we answer
the following question:
Whether the Maricopa County Superior court,
pursuant to A.R.S. § 12-133, has authority
independent from the Arizona Supreme Court, to
promulgate a program mandating experienced
attorneys to serve as arbitrators in light of
statutory language that the superior courts
‘shall maintain a list of qualified persons
. who have agreed to serve?"
The district court stayed all further consideration of
Mr. Scheehle’s state law claim pending the answer to these
questions.
After the district court certified the questions to thie
Court, and before filing his objection, Mr. Scheehle filed with the
district court a “Motion to Tdentify for the Record and to Notify
the Arizona Supreme Court of Current Defendants and Counsel." in
that motion, Mr. Scheehle noted that the caption on the action
reflected the nai
of the individual defendants against whom he
had originally brought suit, but who had left office since that
time. He requested that the court update the caption and inform
the individual menbers of this court that, pursuant to the
operation of the Federal Rules of Civil Procedure, they were
automatically substituted as defendants in this action
Mr. Scheehle noted that Federal Rule of Civil Procedure 25(a)
provides that a public official sued in an official capacity is
automatically replaced as a defendant in any action by his
successor in office
In denying Mr. Scheehie’s motion to amend the caption,
the district court acknowledged that becaui
Mr. Scheehie only
brought suit againat the original defendants in their official
capacities, the federal rule automatically substituted their
successors as defendants in this case. Nevertheless it denied ur.
Scheehle’s request to anend the caption because, given the length
of the case and the number of officials originally named, there
would be many such substitutions, and it is clear from the record
that all current defendants were avare of their status as
defendants in the action.
Two weeks after this order was entered, Mr. Schechle
filed his objection to the four justices answering the certified
question. We treat it as a motion to disquality.
ANALYSIS
Im his objection, Mr. Scheehle asserts that the
participation of the permanent members of this Court in this case
® Mr. Scheehle also filed documente in this Court in which
he apparently requested that this Court update the caption. The
questions certified to us are certified from the case in which they
arose. We have no authority to alter the district court’s caption.
is prohibited by two of the rules set forth in Canon 3(B) of the
Arizona Code of Judicial Conduct. He alleges that the justices are
Gisqualified from hearing the case because they are parties to it
and are thus interested in it. Model Code of Jud. Conduct Canon
3(B) (1) (4) (4. He also alleges that they are biased and prejudiced
with respect to the case, rd. at 3(E)(1) (a). In addition to these
reasons, Mr. Schechle asserts several other reasons for
Aisqualification that are not related to the Code of Judicial
Conduct. We examine each in turn.
The Code of Judicial conduct
Justices as Parti
to the Proceeding
Canon 3(B) (1) (a) (i) requires a judge to ‘disqualify
himself or herself in a proceeding in which . . . (a) the judge
(4) is a party to the proceeding. Mr. Scheehle argues that
this canon admits of no exceptions and that if a judge is named as
@ defendant in an action, the judge is disqualified from hearing
it.
Although we have no doubt that the canon requires such a
result in the general run of cases, Mr. Scheehle is incorrect that
it admits of no exceptions. This Court, in a similar factual
context, has recognized at least one.
In In re Ronwin, Baward Ronwin, a repeatedly unsuccessful
applicant to the Arizona bar, filed a number of civil rights and
antitrust actions in federal court alleging that a conspiracy
existed to keep him from being admitted to the practice of law in
this state. 139 Ariz. $76, 580-81, 680 P.2d 107, 111-12 (1983).
Ronwin named the menbers of this Court as defendants in a nunber of
those actions. id. After filing the claims, Ronwin filed yet
another application for admission to the Arizona bar. zd. Because
“(t]he ultimate responsibility for admitting candidates for the
practice of law is vested in* the supreme court, id. at 578, 680
P.24 at 109, we ruled on the application directly. in raising and
Giscussing the ethical issues created by each justice’s status as
@ defendant in the federal court actions, we noted:
If we are to recuse ourselves simply because
we have been sued by the applicant, then who
is left to decide this case? As the Ninth
Circuit stated: **(A) judge is not
disqualified merely because a litigant sues or
threatens to sue him.’ Such an easy method
for obtaining disqualification should not be
encouraged or allowed.’* Ronwin v. State Bar
of Arizona, 686 F.2d at 701, quoting United
States v. Grismore, $64 F.2d 929, 933 (10th
Cir. 1977); see also smith y. Smith, 115 Ariz.
299, 303, 564 P.2d 1266, 1270 (App. 1977). we
agree; the mere fact that a judge has been
sued by reason of his rulings in a case does
not require recusal. Nor can the fact that
all judges in the court have been sued require
yecusal. To honor such a technique would be
to put the weapon of disqualification in the
hands of the most unscrupulous.
Id. at 586, 680 P.2d at 117.
We thus decided that it was the obligation of the
individual justices comprising this Court to decide on Ronwin's
application, despite any possible appearance of impropriety. rd.
We did so, ultimately denying that application. Id. at 587, 680
P.2d at 118.
Even though in Ronwin we did not specially identify a
doctrine that justified our decision to sit, euch a doctrine, known
as the rule of necessity, is widely applied by other jurisdictions.
Although there are several formslations of the rule, a common one
is that the rule of necessity will prevail over disqualification
standards when it is not possible to convene a body of Judges who
fare not subject to the disqualification standards. United states
v. Wi21, 449 U.S. 200, 212 (1980); Dacey v. Conn. Bar Ass'n, 368
A.2d 125, 129 (Conn. 1976); State v. Rome, 685 P.24 290, 296 (Kan.
1984); Jeffrey M. Shaman et al., Judicial Conduct and Ethics
§ 4.03, at 112 (34 ed. 2000) (*(DJisqualification mst yield to
necessity if recusal would thwart the only tribunal where relief
[is] available.
In Ronwin we concluded that because it was ultimately the
responsibility of the supreme court to determine who could be
admitted to the bar, the supreme court would have to answer the
question. 139 Ariz. at 578, 680 P.2d at 109. ‘Thus, practically,
the permanent members of the Court could not recuse thenselves.
Similarly in this case, Mr. Scheehle’s suit requires a
definitive interpretation of the scope of this Court's
administrative authority to regulate the practice of law in this
state. Such questions are inevitably questions of Arizona law.
This Court is the court of last resort on the interpretation of
such questions. Ariz. Const. art. 3; Hedlund v. superior court,
171 Ariz. 566, 567, 832 P.24 219, 220 (1992) (The supreme court has
the final say on the interpretation of rules.). It is presumably
for this reason that the legislature authorized only this court to
answer questions of state law certified by other jurisdictions.
A.R.S. § 12-1861 ("The Supreme Court may answer questions of law
certified to it by* federal and tribal courts involving dispositive
questions of state law.). Mr. Scheehle’s objection thus presente
the same question this Court asked in Ronwin, “If we are to recuse
ourselves simply because we have been sued by the applicant, then
who is left to decide this case?" Ronwin, 139 Ariz. at 586, 680
P.ad at 117.
Although Mr. Scheehle does not raise the rule of
necessity in his objection, and hence offers no argument why it
should not apply, we have an independent ethical obligation to
ensure that this exception to the general rule of disqualification
does apply before sitting on this case. we note that there are
some distinctions between this matter and Ronwin. Though the Court
was called upon to exercise authority that ultimately rested with
it, as we are here, the matter at issue in Ronwin did not also
require the Court, as it does here, to determine the scope of its
own authority. Moreover, the Ronwin Court did not consider whether
each justice should recuse as the justices did the last time a
10
question was certified to this Court in this matter. Given that
recusal is possible, it could be argued that it is not "necessary"
that any single justice sit on this case, because a replacenent can
be appointed to sit in each justice’s stead. Finally, in Ronwin,
unlike the present case, the justices thenselves were not parties
to the matter they decided.
Courts in other jurisdictions have determined that when
@ litigant names each menber of a state's highest court as a party
to litigation challenging the court's authority or actions, and
then moves to disqualify each menber of the court from sitting on
the case, the rule of necessity obliges the individual members of
the court to sit. See New York State ass’n of Criminal Def.
Counsel v. Kaye, 744 N.B.24 123 (N.¥. 2000) (holding that the rule
of necessity required the individual judges of the New York Court
of Appeals to serve even though they were named defendants in
Proceeding challenging capital fee structure promulgated by that
court); Vermont Supreme Ct. admin. Directive No. 17 v. vermont
Supreme Court, 576 A.2d 127, 132 (Vt. 1990) (determining that the
rule of necessity required individual justices to serve even though
they were named defendants in proceeding challenging administrative
order that they had entered); see also Office of State Ct. Adn’r v.
Background Info. Servs., 994 P.24 420, 425-26 (Colo. 1999)
(upholding rule that required members of supreme court to sit in
determining whether its own order restricting access to court
un
records was valid); Rome, 685 P.2d at 296 (determining that supreme
court must sit even though it is interpreting its own authority);
x parte Farley, 570 S.W.2d 617, 623 (Ky. 1978) ( Board of
Overseers of the Bar v. Lee, 422 A.2d 998, 1002 (Me. 1980) appeal
dismissed by 450 U.S. 1036 (1981) (same); Berberian v. Kane, 425
A.24 527, 527 (R.T. 1981) (same); Cameron v, Greenhill, 582 $.W.2d
778, 776 (Tex. 1979), cert. denied, 444 U.S. 868 (1979) (same);
State ex rel. Hash v. Mcgraw, 376 $.£.24 634, 638 (W. Va. 1988)
(same). The rule of necessity applies even when there are
provisions for a member of the court to be temporarily replaced in
@ matter, See Kaye, 744 N.E.2d at 128 (*The constitutional
provision for the designation of substitute Judges is not to be
used as a vehicle to force removal of the constitutionally
appointed members of this Court by naming them as parties when
challenging adninistrative actions of the Court.*).
For the following reasons, we agree that the rule of
necessity obliges us to sit in answering the questions certified in
this case even though we are nominal parties to the action.
As Mr. Scheehle’s complaint and subsequent motions
indicate, he has sued the permanent menbers of this Court in their
offic:
1 capacities only, He does not argue that any of the four
justices he seeks to disqualify has a personal stake in the
Litigation, when a justice has a personal conflict or is otherwise
unable to serve, there is a procedure for the substitution of that
2
individual justice Substitution based on individual
considerations, however, is very different from an assertion that
every sitting justice is disqualified by virtue of his or her
position as a member of this Court.
Téa permanent menber of this Court being sued in an
official capacity steps aside so that another judge can be
appointed to sit, the person temporarily appointed then becomes a
temporary member of this Court. That person thus suffers from the
me infirmity, albeit on a temporary basis, that caused the
Permanent menber’s recusal. [If] . . . the court could be
regarded as an adversary of the petitioners, how would matters be
any different if its regular members saw fit to vacate the bench?
‘The special members appointed temporarily to replace them would
still constitute that same court and, perforce, they too would be
@isqualified.* Farley, 570 $.W.2d at 623; see also Morgenthau v.
Cooke, 436 N.E.24 467, 469 n.3 (N.Y. 1962) (finding use of
substitutes for all menbers of the court would turn the substitutes
into the Court of Appeals); Vermont Supreme Court, 576 A.2d at 132
(stating that ‘[s]ince the actions challenged in this proceeding
were taken in our official capacity as the Vermont Supreme Court,
the asserted disqualification to act cannot be eliminated simply by
a temporary reconstitution of the Court")
Mr. Scheehle bases his objection, in part, on the
operation of Federal Rule of Civil Procedure 25(d), which
B
automatically substitutes as defendants to a federal lawsuit
Successors in office to those public officials who are sued in
sued the
their public capacities. Because Mr. Scheehle hi
permanent members of this Court only in their official capacity, it
appears that, should a menber recuse or be disqualified, the
temporary replacement would be substituted in by operation of the
Rule. The replacement would thus also be subject to
Gisqualitication under the Rule.
Even if temporary successors were not automatically
substituted in as parties, the reconstituted Court still could not
address Mr. Scheehle's objections as set forth in his First Amended
Complaint. That complaint alleges that ‘Arizona courts do not
provide an impartial forum for litigating this cause because if
Plaintiff is successful in his challenge of the System, arizona
judges may face a substantial increase in workload. Thus, even
assuming the merit of Mr. Scheehle’s objection, if any Arizona
court would be incapable of answering the certified question
without bias, it would not be possible, by appointing temporary
replacements on this Court, to cure the basis of his objection.
Even assuming disqualification or recusal could cure the
problem, it would create additional problems of constitutional
@imension if the menbers of this Court recused for the reasons
Suggested by Mr. Scheehle. The Arizona Constitution specifies the
qualifications for justices of this Court and the process by which
1a
justices mist be appointed and retained. Ariz. Const. art. 6,
55 6, 36-38. The constitution further specifies the unique duties
and prerogatives of this Court, ‘These constitutional prerogatives
involve both administrative responsibilities, Ariz. const. art. 6
S$ 1, 3 (placing judicial power in an integrated judicial
Gepartment and providing the supreme court with administrative
Supervisory authority over all lower courts), and the authority to
interpret the law. Ariz. Const. art. 3 (creating a judicial
Gepartment separate from executive and legislative departments)
The constitution requires that’ those _—_ constitutional
responsibilities be exercised by the justices appointed to this
Court. A disqualification of all menbers of this Court based only
on an asserted conflict that arises from each justices’s
performance of his or her constitutional function would be an
abdication of duty by those who are constitutionally designated to
perform such functions. Other courts have also recognized this
Problem. See Kaye, 744 N.E.2d at 126 (“If disqualification were
vequired whenever the Judges were sued as individuals upon a
challenge to an act of the Court, the result could be substitution
of the entire constitutionally appointed court, leaving ‘the most
fundamental questions about the Court and its powers’* to be
decided by persons who were not appointed to that purpose.);
Berberian, 425 A.2d at 528 (Disqualifying the justices of the
supreme court each time their administrative powers are challenged
a5
would “render the rule-making process self-defeating and
hugatory."); Vermont Supreme Court, 576 A.2d at 226 (finding
Substitution of all members of the court “leaves the most
fundamental questions about the Court and its powers to persons
whose selection and retention are not tested by constitutional
processes")
Further, as we previously recognized in Ronwin, if
Sisqualification were allowed in this case, it would provide
Litigants the ability to disqualify the membership of this entire
Court merely by naming each member as a party. 139 Ariz. at 586,
680 P.2a at 117, Such an easy method for obtaining
@isqualification should not be encouraged or allowed." 1d.
This Court is regularly called upon to interpret or
decide the validity of its own rules. see, e.g., State ex rel.
Napolitano v. Brown, 194 Ariz. 340, 342, 43 6-8, 982 P.24 815, 817
(2999) (rule granting 120 days to file a petition for post
conviction relief upheld); In re Smith, 189 Ariz. 144, 146, 939
P.24 422, 424 (1997) (upholding rule imposing mandatory continuing
legal education); Stapleford v. Houghton, 185 Ariz. 560, 562, 917
P.2d 703, 705 (1996) (finding provision of Rules of Criminal
Procedure superseded by Victim's Bill of Rights); state v. Rosco
105 Ariz. 68, 912 F.2d 1297 (1996) (same) .
Our adoption of a rule does not constitute a prior
determination that the rule is valid and constitutional against any
16
challenge. (CJourt rules and comments thereto cannot be given
effect if they conflict with valid provisions of the constitution.”
Stapleford, 185 Ariz. at 562, 917 P.2d at 705, Such a
determination awaits a judicial proceeding in which opposing
interests are provided a full opportunity to be heard. See, e.9.,
Kaye, 744 N.B.24 at 127 (quoting Vermont Supreme Court, 576 A.24 at
30) (*COlur promulgation of the [rule] is not a prior determination
that it is valid and constitutional. That determination must await
the adjudication in this or a future case.*). Both this Court and
lower Arizona courts have upheld challenges to the validity of
rules promulgated by this Court in such settings. See, e.g.,
Stapleford, 185 Ariz, at 560, 917 P.2d at 70:
Roscoe, 185 Ariz. at
68, 912 P.2d at 129
State v. Uriarte, 194 Ariz. 275, 981 P.2d 575
(App. 1996) (holding court rules must give way to statutes
appropriately implementing constitutional provisions).
It is unusual, however, for the individual justices of
this Court to be named as nominal defendants to a suit challenging
@ court rule. Declaratory judgment actions brought in state court
challenging procedural or administrative rules of this Court do not
require that the individual justices be named to obtain relief.
Although Mr. Scheehle’s § 1983 action brought in federal court
presumably does require that a public official be named,
Mr. Scheehle named a number of officials, including the superior
court judge who enforced the rule and imposed the
nction against
rd
him. Presumably, therefore, he did not have to name each justice
of this Court as a defendant to obtain the relief identified in his
complaint.‘ That he did so, however, does not, under these facts.
require our disqualification. the rule of necessity mandates our
individual participation in responding to the questions certified.
See will, 449 U.S. at 214
2, Bias and Prejudice
Me. Scheehle alleges that each of the four permanent
justices should be disqualified because each is already committed
to a view on the certified questions. This partiality, according
to Mr. Scheehle, constitutes bias or prejudice sufficient to
@isqualify the justices pursuant to Canon 3(#)(1)(a), which
specifies that [a] judge shall disqualify himself or herself in a
proceeding . . . where . . . the judge has a personal bias or
prejudice concerning a party or a party's lawyer.”
The objection asserts that the bias of the justices is
clear because of “the pleadings and papers filed over the past
< Opinion 96-14 of the Arizona Supreme Court Judicial
Ethics Advisory Committee, entitled “Limitations on
Disqualification Requirement,” November 21, 1996, posits that if a
disinterested but informed observer would conclude that suit was
brought against a judge solely to disqualify the judge from
presiding over litigation, the judge is not disqualified, so lang
as the judge feels that he or she can fairly preside over the case.
We need not decide whether a disinterested but informed observer
would make such a determination as to Mr. Scheehle’s suit against
the individual menbers of this Court because we conclude that the
rule of necessity requires the permanent menbers to sit in
answering the certified questions.
38
seven years or so by the defendants in (this action] (which
include, of course, the four justices in question).* sven
suning
that the pleadings filed by the Attorney General representing all
the defendants could be attributed for purposes of this motion to
represent the views of each of the permanent menbera of this Court,
ech, Ryan and Hurwitz) are relatively
three of the four justices (
recent appointees to the Court, and Mr. Scheehle suggests no
pleading filed during the tine of their service on the Court that
would suggest that any of them has a preconceived view on the
Sasue,
‘The only specific pleading mentioned in the objection is
the brief filed by defendants with our reconstituted supreme court
when the Ninth Circuit first certified a question to us in this
same proceeding in 2002. According to Mr. Schechle, in that
pleading the defendants took the position that the supreme court
“had the inherent power to require the attorneys it regulates to
serve as arbitrators." Because Justice McGregor was a menber of
the Court at that time, Mr. Scheshle asserts that the defendants’
position can be attributed to her for purposes of establishing her
personal bias. There are both legal and factual problens with this
argunent.
As a matter of law, even if Mr. Scheehle could establish
that any of the justices has a view on the question at issue, such
an allegation does not constitute the kind of bias or prejudice
as
required for disqualification under the canon. Canon 3(8) (1) (a)
specifies that disqualification is appropriate when “the judge has
@ personal bias or prejudice concerning a party or a party's
lawyer.* “Bias and prejudice means a hostile feeling or spirit of
ill-will . . . towards one of the litigants. The fact that a judge
may have an opinion as to the merits of the cause or a strong
feeling about the type of litigation involved, does not make the
judge biased or prejudiced.* State v. Perkins, 141 Ariz. 278, 286,
686 P.24 1248, 1256 (2984) (quoting State v. Myers, 117 Ariz. 79,
86, 570 P.2a 1252, 1259 (1977) (quoting In re Guardianship of
Styer, 24 Ariz. App. 148, 151, 536 P.24 717, 720 (1975))); Shaman
etal., supra, § 4.04, at 113 (*However, neither bias nor prejudice
refer to the attitude that a judge may hold about the subject
matter of @ lawsuit... . That a judge has a general opinion
about a legal . . . matter that relates to the case before him or
her does not disqualify a judge from presiding over the case.)
(citations omitted); see also Leslie W. Abramson, Judicial
Disqualification Under Canon 3 of the Code of Judicial conduct 24
(24 ed. 1992) (“only personal bias or prejudice constitutes a
disqualifying factor.*).
Thus, Mr. Scheehle’s allegation that the four permanent
justices already have a view about the questions certified does not
constitute a basis for disqualification even if it could be
established.
20
And, even as a factual matter, Mr. Scheehle ie unable to
establish such a pre-existing view. when the supreme court or
other departments of the State require representation, they obtain
that representation from the Attorney General’s office. For cases
involving the supreme court, the legal representation is
coordinated with the Chief Justice, only he was aware of the
position taken by the defendants in this case. That is the basis
for his own recusal in this matter, Ae the New York Court of
Appeals noted in Kaye, “[i]t is not an uncommon practice for the
Chief [Justice] alone to be recused in similar appeals involving
judicial administration.* 744 N.E.2d at 125 n.2.
Neither Justice McGregor nor any of the other justices
who are challenged by Mr. Scheehle’s motion tock any role in the
defense, nor were they aware of the positions or theories advocated
by the State before the State's papers were filed. Mr. Scheehle
challenges the validity of a court rule, names each of the
individual justices as nominal party defendants, and then asserts
that any answer or argument advanced by the State in favor of the
validity of the rule mist be attributed to each of the justices for
the purpose of establishing his or her individual bias. In cases
in which the rule of necessity requires the permanent members of
this Court to sit on a question, and the justices have taken no
role in the preparation of the defense, such an attribution cannot
be made. The rule of necessity itself requires such an
accommodation. Cf, Disqualification Concerns When the Attorney
General's Office Represents Judges, Op. 02-05 Ariz. Supreme ct.
Jud, Ethics Advis. Comm. (Sept. 12, 2002) (While normally a judge
should recuse from hearing a case in which the Assistant Attorney
General representing him in other mattera appears before him, “if
the lawyer currently represents all judicial officers in the county
or state (e.g., in a challenge to entire court’® authority or an
attack on a judicial policy or rule), the ‘rule of necessity’ may
prevail, making disqualification impractical and unnecessary.
B. Other Arguments for Disqualification
In addition to these argunents, Mr. Scheehle also briefly
argues that the individual justices should recuse because (1) he
has filed a complaint against the individual justices with the
Arizona Commission on Judicial Conduct resulting from their failure
to recuse themselves in this matter, and (2) the naned defendant
justices previously recused themselves when a question was earlier
certified in this same matter.
41. Complaint to the Commission on Judicial conduct
Mr. Scheehle asserts that the individual justices are
disqualified from deciding this matter because he has filed a
complaint against each of them with the Commission on Judicial
Conduct resulting from their failure to recuse.
As far as we can discern, every state that has considered
the question, including Arizona, has determined that a complaint to
22
the Commission on Judicial Conduct alone does not require recusal.
“The mere fact that a complaint has been made against a judge
alleging the judge is biased and cannot be impartial does not
require automatic disqualification or recusal by the judge. Tf
this were so any party or attorney could easily disrupt court
proceedings at any time by filing a complaint against the judge.
Disqualification Considerations When Complaints Are Filed Against
Judges, Op. 98-2 Ariz. Supreme Ct. Jud. Ethics Advie. Comm. (Mar.
, 1998) (quoting Shaman et al., Judicial Conduct and Ethics
§ 4.06 (24 ed, 1995)); see also Op. No. 98-04 Wash. Ethics Advis.
comm. (Apr. 20, 1998); Op. 45 calif. (gan. 23, 1997).
‘Thus, Mr. Scheehle’s complaint against the justices with
the Commission on Judicial Conduct does not alone merit
disqualification.
2. The Justic
Previously Recused in this Matter
Mr. Scheehle correctly asserts that when the Ninth
Circuit previously certified a question to us in this matter, the
five permanent justices then on the Court all recused themselves.
‘The recusal did not cone as a result of an objection brought by Mr.
Scheehle. Each justice recused on his or her own motion. We have
no record of their reasons for recusal. Even when the canons do
not require recusal, a judge may recuse from judicial duties
Zuniga v. Superior Court, 17 Ariz. 222, 224, 269 P.2d 720, 721
(2954) ("A judge may on his own motion, if he acts timely, recuse
23
himself even though the reason given might not be sufficient to
form the basis of a legal disqualification. *)
We do not now question the decision of each of the
members of this Court at that time to recuse themselves. Nor are
we bound by that decision. zt is, however, our determination for
the reasons set forth above that Mr. Scheehle presents no legal or
factual argument requiring the disqualification of ali four
Permanent justices, merely because the last time a question was
certified in this matter each individual justice chose to recuse.
concuusron
We recognize that each justice in this case has a
continuing individual responsibility to exercise “considerable
introspection and intellectual honesty,“ in determining whether he
or she may appropriately sit upon any matter that cones before the
Court. op. 98-2 Ariz. Supreme Ct. Jud. Ethics Advis. Comm. (Mar.
24, 1998). Such an evaluation depends on considerations that may
be unique to each justice and cannot be evaluated or discussed in
this collective opinion. Apart. «from such individual,
considerations, however, we here determine that Mr. Scheehle has
set forth no arguments in his objection that would compel
@isqualification of any of the four justices from sitting on the
certified questions. Therefore,
24
XT IS ORDERED, denying Scheehle’s motion to disqualify.
G. Murray Snow, Judge
CONCURRING:
Ruth V. McGregor, Vice Chief Justice
Michael D. Ryan, Justice
Rndvew D. Hurwitz, Justice
* The Honorable Charles E. Jones recused himself, pursuant to
article 6, Section 3 of the Arizona Constitution. The Honorable ¢.
Murray Snow, Judge of the Court of Appeals, Division One, waa
designated to sit in his stead.
25.
|
8e048733-33a0-4851-9a0c-235c696a3abd | State of Alabama ex rel. Luther Strange v. Tyrone Clark, Sr. | alabama | Alabama Supreme Court | In the Supreme Court of Alabama
duly 27, 2016
State of Alabama ex rel. Luther Strange,
Attorney General
1151021
Tyrone Clark, sr.,
Sheriff of Sumter County
PER CURIAM.
In January 2015, Tyrone Clark, Sr., began his present
term of office as the sheriff of sumter County. on June 30,
2016, the State of Alabama, by and through its attorney
General, pursuant to §§ 36-11-4 and 36-11-5, Ala. Code 1975,
filed an information of impeachment and a prayer for ouster,
charging that sheriff Clark, during his present term of
office, willfully neglected his duty and engaged in corruption
while in office, in violation of § 36-11-1, Ala. Code 1975,?
'section 36-11-1 provides, in pertinent part:
(a) The following officers may be impeached and
removed from office: ... sheriffs
"(b) The officers specified in subsection (a) of
this section may be impeached and removed from
office for the following causes:
"(1) Willful neglect of duty;
"(2) Corruption in office;
3151021
and Art. VII, § 173 and § 174, Ala. Const. 1901.7
‘The information contained two charges: willful neglect of
"(3) Incompetency;
(4) Intemperance in the use of
intoxicating liquors or narcotics to such
an extent in view of the dignity of the
office and importance of its duties as
unfits the officer for the discharge of
such duties; or
"(5) Any offense involving moral
turpitude while in office or committed
under color thereof or connected
therewith."
*article VII, § 174, Ala. Const. 1901, provides:
“The chancellors, judges of the circuit courts,
judges of the probate courts, and judges of other
courts from which an appeal may be taken directly to
the supreme court, and solicitors and sheriffs, may
be removed from office for any of the causes
specified in (Art. VII, § 173,] or elsewhere in this
Constitution, by the supreme court, under such
regulations as may be prescribed by law. The
legislature may provide for the impeachment or
removal of other officers than those named in this
article.”
Article VII, § 173, Ala. Const. 1901, provides that
officials "may be removed from office for willful neglect of
duty, corruption in office, incompetency, or intemperance in
the ‘use of intoxicating liquors or narcotics to such an
extent, in view of the dignity of the office and importance of
the duties, as unfits the officer for the discharge of such
duties, or for any offense involving moral turpitude while in
office, or committed under color thereof, or connected
therewith ...." See also § 36-11-1, Ala. Code 1975
2
3151021
@uty and corruption in office. With regard to Charge one in
the information, willful neglect of duty by Sheriff clark
during his present term of office, the information included
the following nine specifications, namely that Clark
1. “{WJillfully neglected his duty to secure and
Supervise inmates in his custody under Ala. Code
(1975,] § 14-6-1[,] when he made Rodney Coats, an
inmate in the Sumter County Jail, a trust [y]. Coats
had an extensive criminal history for drug-related
offenses, and he was placed in jail under these
criminal’ — charge: Trafficking in Cocaine,
Trafficking in Methamphetamine, Possession of a
Controlled Substance, Possession of Marijuana First
Degree, Receiving stolen Property Second Degree,
Certain Persons Forbidden to Possess a Pistol,
Assault First Degree, and Possession of Drug
Paraphernalia. His bond for these charges totaled
$675,000.00.
“when he made Coats a trust(y], Sheriff Clark
gave Coats privileges, including allowing him to
move freely about both the Jail and Administration
Buildings of the Sumter County Sheriff's Office and
allowing Coats to leave the Jail, sometimes without
law enforcement oversight."
2. "{W)illfully neglected his duty to prevent the
introduction of contraband into the Jail and
supervise the inmates housed therein under Ala. Code
(1975,] §§ 14-6-1 and 13A-10-37 and -38.
Specifically, Sheriff Clark aided Rodney Coats in
bringing contraband into the Sumter County Jail by
ordering the Sumter County Detention Officers not to
search Coats when he would return to the Jail after
being outside of the Jail and free of law
enforcement oversight. This contraband included
controlled substances, cell phones, and cigarettes
1181021
"sheriff Clark also protected Coats from ‘shake
downs’ performed by the Sumter County Jail Staff, as
well as ‘drug sweeps’ at the Jail by outside la
enforcement agencies, by removing him from the Jail
or instructing Jail staff to leave Coats alone.
"Furthermore, Sheriff Clark allowed Coats to
receive visitors at the Sumter County Sheriff's
Office Administrative Building who were not searched
or subjected to any security measures before meeting
with Coats. These visitors were also allowed to
access the Sumter County Sheriff's Office
Administrative Building through an entrance that was
not monitored by surveillance cameras."
3. _"(W]illfully neglected his duty under Ala.
Code [1975,] § 14-6-1[,] to supervise the inmates in
the Sumter County Jail and prevent inmates from
possessing a deadly weapon under Ala. Code (1975, ]
§ 13A-10-36, by allowing Rodney Coats to have access
to firearms, even though Coats had pending charges
for Assault First Degree and Certain Persons
Forbidden from Possessing a Handgun."
4, "{W]ilifully neglected his duty under Ala.
code [1975,] § 14-6-16[,] to safely preserve the
process or order by which prisoners are committed to
jail by permitting Rodney Coats, himself an inmate,
to process prisoners."
5. "{W]illfully neglected his duty under Ala,
code [1975,] § 14-6-1[,] to maintain custody of
inmate Ronald James. Sheriff Clark gave James, who
was serving a 10-year sentence, split to serve 14
months, for the violent offense of Burglary Second
Degree, a ‘jail pass.' This allowed James to leave
the custody of the Sumter County Jail for extended
periods of time, endangering the safety of the
victim involved in the case for which James was
incarcerated, as well as endangering the safety of
the residents of sumter County."
1152021
6. "(W]illfully neglected his duty under Ala.
Code [1975,] § 14-6-1[,] to maintain custody of
inmate James Markell Bell. Sheriff Clark also
failed to swear out an arrest warrant, apprehend, or
arrest Bell after Bell escaped from the Sumter
County Jail in violation of Ala. Code [1975,] §
13A-10-32."
" (w] il1fully neglected his duty to supervise
jail inmates and secure the Jail under Ala. Code
[1975] § 14-6-11,] by giving inmate Rodney Coats
access to an unsecured room in the administration
building, where Coats had sexual intercourse with
female visitors. The visitors were never searched,
and the entrance to the room was not monitored by
cameras or otherwise."
" (w] i11 fully neglected his duty to supervise
jail inmates, secure the Jail, and enforce the law
under Ala. Code [1975,] §§ 14-6-1 and 36-22-3[,]
when he provided an environment in the
Administration Building that allowed Rodney Coats to
engage in Human Trafficking in the Second Degree, in
violation of Ala. Code (1975,] § 13A-6-153 (a) (2
9. "{W]illfully neglected his duty to properly
appoint and supervise deputies under Ala. Code
(1975,]_ § 36-22-3[,] when he appointed Johnny
Archibald a deputy sheriff and directed Archibald to
patrol on his own, even though Archibald had not
been certified as a law enforcement officer by the
Alabama Peace Officers Standards and Training
Commission, in violation of Ala. Admin. Code [ (Peace
Officers Training), Rule] 650-X-2-.01."
With regard to Charge two in the information, corruption
in office by Sheriff Clark during his present term of office,
the information included the following three specifications,
namely that Clark:
3181022
1. "[U)sed his official position or office to
benefit himself by personally and privately
employing inmates of the Sumter County Jail, namely
Rodney Coats and Glenn Brown, in violation of Ala
Code [1975,] §§ 14-5-11 and 36-25-5. Among other
things, Sheriff Clark directed Coats and Brown to
perform work at his personal home
"[U]sed his official position or office to
benefit himself by operating an undocumented work
release program, wherein he allowed inmates from the
Sumter County Jail to be released for the purpose of
working for individuals and/or businesses on the
condition that the inmates pay Sheriff Clark a
portion of their wages, in violation of Ala. Code
(2975,] §§ 36-22-16 and 14-8-37.
3. "{A] tempted to use his official position or
office to coerce a female employee to have sexual
intercourse with him."
On June 30, 2016, this Court ordered Sheriff Clark to
appear before it on July 25, 2016, to answer the information
filed against him. The clerk of this Court issued a summons,
ordering Terry W. Peeler, the coroner of Sumter County, to
serve the summons to appear and the attached order and
information on Sheriff Clark. ‘That same day, Peeler served
Sheriff Clark with the summons and the attached order and
information
on duly 25, 2016, Sheriff Clark appeared before this
Court, waived the reading of the information, denied each and
every specification charged in the information, and entered a
2151022
plea of not guilty. The Court then heard ore tenus testimony.
Alabama caselaw is well settled that a proceeding brought
pursuant to Art. VII, § 174, Ala. Const. 1901, is criminal in
nature. Alonzo v. State ex rel, Booth, 283 Ala. 607, 219 So.
2d 858 (1969); State ex rel. Mullis v. Matthews, 259 Ala. 125,
66 So, 24 1105 (1953). The State must prove the charges on
which the proceeding is based beyond a reasonable doubt.
State ex rel. Mullis, supra; State ex rel. Attorney Gen, v.
Robinson, 111 Ala. 482, 20 So. 30 (1896); and State v.
Buckley, 54 Ala. 599 (1875).
Justice McClellan, concurring specially in State ex rel.
Attorney General v. Martin, 180 Ala. 458, 461, 61 So. 491, 492
(1913), defined "willful neglect of duty" as an "intentional
failure or omission of an officer to perform a plain and
manifest duty which he is able to perform when he omits to do
80. “Corruption in office," also known as “official
misconduct," has been defined as "[a] public officer's corrupt
violation of assigned duties by malfeasance," misfeasance,
°Malfeasance is defined as "(a] wrongful, unlawful, or
dishonest act; esp., wrongdoing or misconduct by a public
official." Black's Law Dictionary 1100 (10th ed. 2014).
‘Misfeasance is defined as "[a] lawful act performed in
a wrongful manner." Black's Law Dictionary 1151 (10th ed.
7
1151021
or nonfeasance."" Black's Law Dictionary 1150 (10th ed
2014) (defining "official misconduct" as an entry under the
term "misconduct®) .
Based on specifications 1, 2, 3, 5, 6, 7, and 8 of Charge
one in the information and the evidence adduced in support
thereof, the Court finds that Sheriff Tyrone Clark, Sr., is
guilty beyond a reasonable doubt of willful neglect of duty
during his present term of office. Based on specifications 1,
and 3 of Charge two in the information and the evidence
adduced in support thereof, the Court finds that Sheriff
Tyrone Clark, Sr., is guilty beyond a reasonable doubt of
corruption during his present term of office. It is the
judgment of this Court that sheriff Clark be impeached, and
Tyrone Clark, Sr., is hereby ousted from the office of sheriff
of Sumter County, Alabama.
Parker, Murdock, and Wise, JJ., concur.
Stuart, Bolin, Shaw, Main, and Bryan, JJ., concur
specially.
2014).
‘Nonfeasance is defined as "(t]he failure to act when a
duty to act exists." Black's Law Dictionary 1216 (10th ed.
2014).
2181021
BOLIN, Justice (concurring specially).
I concur fully with the findings of the per curiam
opinion that Sheriff Tyrone Clark, Sr., is guilty beyond a
reasonable doubt of corruption in office during his present
term of office, as set forth in Charge two of the information,
and that Sheriff Tyrone Clark, Sr., is guilty beyond a
reasonable doubt of willful neglect of duty during his present
term of office, as set forth in Charge one of the information,
and as reflected in the seven acts specified in the opinion as
supporting that finding. I write specially to state that I
find from the evidence that Sheriff Tyrone Clark, Sr., is also
guilty beyond a reasonable doubt of specified acts 4 and 9 in
charge one.
Stuart, Shaw, Main, and Bryan, JJ., concur.
|
07932394-a56b-4791-9436-6b7073efdecf | Zimmerman v. Betsey Bayless, ...and House of Representatives and Senate of the State of Arizona ...and Arizonans for Wildlife Conservation (Supreme Court Order) | arizona | Arizona Supreme Court | FILED
AUG 3 1 2000
SUPREME COURT OF ARIZONA
DOUGLAS G. ZIMMERMAN, Arizona Supreme Court
No. C¥-00-0326-a8/E2,
Plaintiff-Appellant/
Cross-Appeliee, ) Maricopa County Superi:
Cours
No. CV 2000-15083
BETSEY BAYLESS, Secretary of
State for the State of Arizona,
De!
dant-Appellee,
and
‘THE HOUSE OF REPRESENTATIVES and
SENATE OF THE STATE OF ARIZONA,
by and through BRENDA BURNS,
President of the Senate and JEFF
GROSCOS?, Speaker of the House,
Real Parties in Intere
Appellee/Cross Appellat
ORDER
and
ARIZONANS FOR WILDLIFE
CONSERVATION,
Intervenor-Appellee/
Gross-Appellant,
,
)
‘
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5
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This Court has read and considered all the briefs
in this case on appeal and cross-appeal. hile the late
filing in superior court may not have prejudiced that
court's consideration of this matter on the merits, the
matter reached this Court far too late for the Court to
address the merits in a meaningful yet timely way. Harris v.
Purcell, 193 Ariz. 409, 973 P.2d 1166 (1998). Therefore,
dismissing the appeal.
ORDERED dismissing the cross-appeal
as moot.
DATED this 31" day of August, 2000.
THOMAS A. Zi
Chief Justice
10:
Stephanie Nichols-Young, Esq.
Lisa T. Hauser, Esq., Meyers Taber Meyers P.C.
Hon. Janet A. Napolitano, Esq., Arizona Attorney General
Attn: Joseph A. Kanefield, Esq.
Hon. Robert D. Myers, Judge, Maricopa County Superior Court
Hon. Colin F, Campbell, Presiding Judge, Maricopa County Superior
Court
Michael K. Jeanes, Clerk, Maricopa County Superior Court
|
e235637a-3976-4140-9396-52ad51cab9c1 | THOMAS HANEY v TOM RICE et al | arizona | Arizona Supreme Court | FILED
JUL 11 2008
soieueueic
SUPREME COURT OF ARTZONA
In Division
THOMAS HANEY, an individual and
qualified elector,
Arizona Supreme Court
No. CV-08-0195-AP/EL
Appellant, ) Maricopa County
Superior Court
No. cv2008-014383
‘THE HONORABLE R. FULTON BROCK,
DON STAPLEY, ANDREW KUNASEK, MAX
W. WILSON and MARY ROSE WILCOX,
THE DULY ELECTED or APPOINTED
MEMBERS OF THE MARICOPA COUNTY
BOARD OF SUPERVISORS, WHO ARE
NAMED SOLELY IN THEIR OFFICIAL
CAPACITY: THE MARTCOPA COUNTY
)
)
>
)
)
)
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) MEMORANDUM DECISION
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>
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BOARD OF SUPERVISORS; THE )
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(Not for Publication -
Ariz. R. Sup. Ct. 111)
HONORABLE HELEN PURCELL, THE
DULY ELECTED MARICOPA COUNTY
RECORDER, WHO IS NAMED SOLELY IN
HER OFFICIAL CAPACITY, AND THE
HONORABLE KAREN OSBORNE, THE
DULY APPOINTED MARICOPA’ COUNTY
DIRECTOR OF ELECTIONS, WHO 15
NAMED SOLELY IN HER OFFICIAL
capacrTy,
Appellees,
‘ToM RICE, an individual,
Real Party in Interest.
Appeal from the Superior Court in Maricopa County
‘The Honorable Douglas L. Rayes, Judge
AFFIRMED
WILLIAMS & ZINMAN, P.C. Scottsdale
By Scott £. Williams
Mark B. Zinman
Attorneys for Thomas Haney
RAYMOND, GREER @ SASSAMAN, P.C. Phoenix
By Michael J. Raymond
Attorneys for Tom Rice
BERCH, Vice Chief Justice
a We have been asked to decide whether nominating
petitions that contain only twelve signature lines per page
comply with Arizona Revised Statutes ("A.R.S.") section 16-
315(A) (3) (2006). Under the facts of this case, we hold that
they do.
I. FACTS AND PROCEDURAL HISTORY
2 Tom Rice seeks his party’s nomination to run for
Justice of the Peace of the Dreamy Draw Justice Precinct. To be
eligible, Rice needed to submit 441 valid signatures to the
Maricopa County Elections Department. Rice submitted forty-five
petition sheets that contained 498 valid signatures. only
thirty-six of the forty-five petition sheets contained the
statutorily prescribed fifteen signature lines; the other nine
contained only twelve lines per page. Those nine sheets bore a
total of sixty-seven valid signatures.
2 Thomas Haney, a qualified elector, challenged Rice’s
petitions on the ground that the nine petition sheets containing
only twelve signature lines were invalid, and therefore, Rice
-2-
failed to submit the required 441 signatures (498 less 67 is
431). On June 23, 2008, the superior court conducted a hearing
and held that the deficient petition sheets substantially
complied with § 16-315(A)(3). Haney subsequently appealed to
this Court, and by an order dated July 1, 2008, we affirmed. In
that order we informed the parties that a written decision would
follow; this is that decision.
oo We have jurisdiction pursuant to Rule 8.1 of the
Arizona Rules of Civil Appellate Procedure and A.R.S. § 16-
391(A) (2006).
II. pIscussrow
45 Arizona law prescribes the form in which nominating
petitions must be made. At the center of this controversy is
A.R.S. § 16-315(A) (3), which provides as follows:
A, The nomination petitions shall be in substantially
the following form:
3. There shall be fifteen lines spaced three-eighths
of an inch apart and consecutively numbered one
through fifteen.
a6 Haney argues that the text of § 16-315(A)(3) is clear
on its face ~ that is, because the statute uses the word
“shall,” the doctrine of “substantial compliance” does not
apply, and the petitions are therefore deficient because they
contain only twelve lines. To support his argument, Haney
-3-
asserts that our decision in Clark v. Pima County Board of
Supervisors, 128 Ariz. 193, 624 P.24 871 (1981), requires strict
adherence to the statute's text. He also maintains that
accepting Rice's position would open the door to future
interpretations of § 16-315(A), which would frustrate the
statute’s purpose. Haney urges us to reject the nine petitions
containing only twelve signature Lines.
7 Rice agrees that the text of § 16-315(A) governs.
Unlike Haney, however, Rice argues that the prefatory clause of
§ 16-315(A) requires only that the petition substantially comply
with the specific enumerated subsections. Rice distinguishes
Clark and asserts that our decisions in Moreno v. Jones, 213
Ariz. 94, 139 P.3d 612 (2006), Clifton v. Decillis, 187 Ariz.
112, 927 P.2d 772 (1996), and Marsh v. Haws, 111 Ariz. 139, 526
P.2d 161 (1974), support the textual conclusion that substantial
compliance suffices.
a8 Resolution of this case requires us to answer two
related inguiries: first, whether substantial compliance is the
correct standard, and second, if so, whether Rice's petitions
satisfy that standard. Both questions present issues of law,
which we review de novo. Moreno, 213 Ariz. at 101-02, $ 40, 139
P.3d at 619-20.
A. The Applicable Standard
9 We agree with the trial court that the correct standard
is substantial compliance. Although Haney is certainly correct
that § 16-315(A) uses the term “shall,” the term must be viewed
in context with the remaining parts of § 16-315(A). See Ariz.
Dep't of Rev. v. Action Marine, Inc., 218 Ariz. 141, 143, $ 10,
181 P.3d 188, 190 (2008) (construing statutes as a whole,
considering context, language, and purpose). The prefatory
clause of § 16-315(A) requires the nominating petitions to be in
“substantially the . . . form” of the enumerated subsections.
Reading subsection (3) in isolation, as Haney does, without
reference to the prefatory clause, would strip the words
“substantially the following form” of meaning and purpose.
Although the term “shall” and the phrase “substantially the
following form” are not entixely consistent, the statute should
be read to avoid a construction that would render the latter
meaningless, while also giving due weight to the former. See
Keiz v. Buckeye Petroleum Co., 145 Ariz. 374, 379, 701 P.2d
1182, 1187 (1985). Thus, we conclude that the best reading of
§ 16-315(A) gives weight to both; that is, the statute requires
substantial compliance with the mandatory enumerated statutory
subsections.
s10 We concluded similarly in Clifton. There, we decided
whether nominating petitions for a general election complied
-~5-
with the requirements of A.R.S. § 16-341(D) when the petition
forms did not designate the party affiliation of an independent
candidate who left the party designation portion of the petition
blank. 187 Ariz. at 113, 927 P.24 at 773. Like § 16-315(A),
the statutory provision at issue in Clifton required that “(t}he
nomination petition shall be . . . substantially” in the form
provided by the statutory text requiring the candidate to
indicate the party name or its equivalent. To be sure, Clifton
explored a different statute, but we find its analysis
particularly persuasive because the prefatory clause in § 16-
341(A) is almost identical to that for § 16-315(A).
saa The statutory purpose behind nominating petitions also
supports our conclusion, As we stated in Clifton:
(WJominating petitions were designed to “in some
measure [weed] out the cranks, the publicity seekers,
the frivolous candidates who have no intention of
going through with the campaign” . . . “yet not keep
out those who are serious in their efforts and have a
reasonable nunber of supporters.”
187 Ariz. at 115, 927 P.2d at 775 (second alteration in Clifton)
(quoting Adams v. Bolin, 77 Ariz. 316, 320, 271 P.2d 472, 475
(1954)). Requiring only substantial compliance furthers this
statutory purpose, and we therefore conclude that § 16-315(A)
“does not mandate perfection but only that candidates
substantially comply with its requirements.” Id. at 116, 927
P.2d at 776.
m2 Finally, we find Haney's citation to Clark unhelpful.
The issue in Clark was whether “the signers of nominating
petitions must sign with the exact name under which they are
registered to vote,” not whether the forms thenselves
substantially complied with the statutory requirements. 128
Ariz. at 194, 624 P.2d at 872. Clark required only that the
proponent be prepared to offer additional proof that the
signatories were properly registered when their names did not
natch voter registration affidavits. Id. at 195, 624 P.2d at
873; see also 1993 Ariz, Sess. Laws, ch. 98, $ 22 (Ist Reg.
Sess.) (modifying statutory section at issue in Clark).
B. Substantial Compliance with A.R.S. § 16-315
3 Having determined that substantial compliance is the
appropriate standard, we must now determine whether the
petitions containing only twelve lines substantially comply with
§ 16-315. We conclude that they do.
na ‘In determining whether a nomination petition form
substantially complies with the statutory requirements, this
court has focused on whether the omission of information could
confuse or mislead electors signing the petition.” Moreno, 213
Ariz. at 102, $ 42, 139 P.3d at 620. To be sure, § 16-315(A)
‘allows a measure of inconsistency” so long as it does not
affect the result. Id. (quoting Clifton, 187 Ariz. at 116, 927
P.2d at 776).
1s Here, the nominating petition sheets containing only
twelve signature lines were identical, in both form and
substance, to the unchallenged petition sheets with the
exception that the bottom three lines were cut off. This was
likely the result of copier error. Indeed, all the information
necessary to understand the petitions was present - the name of
the court and office sought, the party affiliation, the nane of
the candidate, the candidate’s address, the county, and the date
of the election. No potential signer would distinguish between
the deficient and non-deficient sheets, and any signer would be
able to reject or accept the petition on its face.
s6 We believe that having fewer lines than required by
$ 16-315 does nothing to confuse or mislead an elector.
Finally, having fewer lines is considerably less substantial
than those deficiencies that were not disqualifying in Moreno,
213 Ariz. at 102, J 44, 139 P.3d at 620 (omission of day and
month of primary election date), Clifton, 187 Ariz. at 116, 927
P.2d at 176 (omission of party designation for independent
candidate), and Marsh, 111 Ariz. at 140, 526 P.2d at 162 (using
“SO. PHX. Precinct” as an abbreviation for the South Phoenix
Precinct). Thus, we hold that the petitions in this case
substantially comply with § 16-315(A) (3).
III. CONCLUSION
m7 For the foregoing reasons, we affirm the judgment of
the superior court.
Rebecca White Berch, Vice Chief Justice
CONCURRING:
Michael 0. Ryan, Justice
W Scott Bales, Justice
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